Custom, Excise & Service Tax Tribunal
Hawkins Cookers Ltd vs Commissioner Of Central Excise, Mumbai ... on 18 February, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/1433/07 Mum
(Arising out of Order-in-Appeal No. SRK/331/M-III/2007 dated 3.9.2007 passed by the Commissioner of Central Excise (Appeals), Mumbai III).
For approval and signature:
Honble Shri. M.V. Ravindran, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Hawkins Cookers Ltd.
:
Appellant
Versus
Commissioner of Central Excise, Mumbai III
Respondent
Appearance Shri J.H. Motwani, Advocate for Appellant Shri U.H. Jadhav, JDR for Respondents CORAM:
Shri. M.V. Ravindran, Member (Judicial) Date of Hearing : 18.02.08 Date of Decision : 18.02.08 ORDER NO.
Per : Shri. M.V. Ravindran, Member (Judicial) This appeal is directed against order-in-appeal No. SRK/331/M-III/2007 dated 03.09.2007 vide which the ld. Commissioner (Appeals) has upheld the order-in-original dated 26.2.2007 vide which the refund claim of the appellant was rejected.
2. Heard both sides and perused the records.
3. The appellant filed refund claim of Rs.98,094.63 with the authorities for the amount of duty paid on parts which was captively consumed by him. The said refund claim was sought to be rejected by issue of show cause notice dated 04.08.1995. The said show cause notice was adjudicated by the adjudicating authority and vide order-in-original dated 24.8.1995 he rejected the refund claim of the appellant under section 11B of the Central Excise Act, 1944. Against such order the appellant moved ld. Commissioner (Appeals), who vide order dated 29.10.1999 set aside the impugned order and allowed the refund claim of the appellant. The said order dated 29.10.99 not taken in appeal by the Revenue. Subsequently on 19.06.2001 the office of the Asst. Commissioner of Central Excise, Thane-I Division, issued another show cause notice wherein they directed the appellant to show cause as to why the very same refund claim, should not be rejected. The said show cause notice dated 19.06.2001 was adjudicated by the adjudicating authority and vide order-in-original dated 7.8.2001 again rejected the very same refund claim. Aggrieved by the said order the appellant preferred an appeal before the Commissioner (Appeals). Commissioner (Appeals) vide order dated 25.02.2002 upheld the order-in-original dated 7.8.2001. Aggrieved by such order of the Commissioner (Appeals) the appellant moved the Tribunal, in Appeal No. E/1929/2002. The Tribunal vide final order No. A/556/C-IV/WZB/SMC/06 dated 06.03.06 set aside the impugned order by the following findings:-
Both sides agree that the issue involved in the present case is already settled by the Commissioner (Appeals) order dated 29.10.99 as at page 41 of the appeal filed. I, accordingly allow the appeal in terms of the above order with consequential relief, if any. Against the above said order of Tribunal, the Revenue filed an application for rectification of mistake under provisions of Section 35C of Central Excise Act, 1944 and the said miscellaneous application was dismissed by the Tribunal vide order M/04/C-IV/SMB/WZB/MUM/2007 dated 26.12.2006.
4. Despite the clear-cut order of the Tribunal in sanctioning the refund claim to the appellant, the Asst. Commissioner of Central Excise, Wagle - I Division, Mumbai III took into himself and passed a fresh order-in-original dated 26.2.07 rejecting the refund claim filed by the appellant. The appellant again moved ld. Commissioner (Appeals) against order-in-original dated 26.2.07 and ld. Commissioner (Appeals) also in the impugned order upheld the order of the adjudicating authority. I find that this is very strange way, of not granting refund claim which is due to the appellant. The dispute between the parties was settled as early as 29.10.1999 when the ld. Commissioner (Appeals) passed an order setting aside the order-in-original, which rejected the refund claim. The said order was never taken up in appeal. Having accepted that the appellant is eligible for refund claim, Revenue instead of granting the same again issued a show cause notice asking to show cause is in itself improper and unwarranted. Despite the adjudication of said show cause notice dated 19.8.2001 having culminated in order of the Tribunal dated 06.03.2006 in favour of appellant herein and having not produced any stay against our order dated 6.3.2006 it was incumbent as the lower authorities to respect the order of the Tribunal and judicial discipline demanded that they should have been granted the refund claim to the appellant. The lower authorities erred in not following the judicial discipline as has been settled by the Honble Supreme Court in the case of Kamalakshi Finance. To my mind both the lower authorities have erred in not granting the refund claim, despite the issue having attained finality at the hand of the Tribunal. Suffice to say, that, this is gross abuse of the powers and in view of the above said reasoning, the impugned order rejecting the refund claim of the appellant is liable to be set aside and I do so. The appeal is allowed with consequential relief, if any.
(Dictated in Court) (M.V. Ravindran) Member (Judicial) nsk 4