DEVI SYNTHETICS Vs. COMMISSIONER (APPEALS), AHMEDABAD

JUDGEMENT

(1.) THE appellants are un -represented. However, they have filed written submission which we have gone through. We have heard Dr. M.K. Rajak, SDR appearing for the Revenue.

(2.) AS per facts on records, the appellant filed a refund claim of Rs. 1,92,000/ - for duty paid on account of gallery portion. Such refund claim was rejected by the Deputy Commissioner vide his order dated 30 -3 -2001. However, on an appeal filed by the appellant, Commissioner of Central Excise (Appeals) set aside the said order of Deputy Commissioner vide his OIA No. 64/2003, dated 5 -2 -2003. The Commissioner (Appeals) order was challenged by the Revenue before the Tribunal and vide order No. A/2023/WZB/AHD/2007, the Revenues appeal was rejected by following Bombay High Court decision in the case of M/s. Om Textiles Pvt. Ltd. 2006 (74) RLT 233 (Bombay). As a result of allowing of appeal by the Commissioner (Appeals), refund claim of Rs. 1,17,440/ - was sanctioned by the Assistant Commissioner of Central Excise, Ahmedabad vide his order dated 22 -9 -2003. While sanctioning refund claim Assistant Commissioner observed that refund is as a consequence of allowing assessees appeal by Commissioner (Appeals) and, as such he is required to examine the quantification of the same only. Said order of Assistant Commissioner sanctioning the refund was challenged by the Revenue before Commissioner (Appeals). The appellate authority vide his impugned order accepted the Revenues appeal and set aside the order of refund passed by the Assistant Commissioner. Hence the present appeal.

(3.) WE find that the refund in the present appeal is as a consequence of earlier proceedings vide which the assessees claim was accepted by the Commissioner (Appeals) and Revenues appeal was rejected by the Tribunal. As such, it was not open to Commissioner (Appeals) in the present proceedings to again take into consideration the merits of the case and reject the refund claim on merits. The Assistant Commissioners order, which stands set -aside by the Commissioner (Appeals), in the present proceedings, was as a consequence of allowing the earlier appeals by Commissioner (Appeals). As such, we fully agree with the appellants that it was not open to the appellate authority to re -discuss and re -determine the merits of the case. We accordingly set aside the impugned order of the Commissioner (Appeals) and restore the order of the Assistant Commissioner. Appeal is allowed in above terms.