Custom, Excise & Service Tax Tribunal
M/S. Richardson & Cruddas (1972) Ltd vs Cce Nagpur on 21 September, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. E/586/09 - Mum
(Arising out of Order-in-Appeal No. SN/55/NGP/2009 dated 23.02.2009 passed by the Commissioner of Central Excise & Customs (Appeals), Nagpur)
For approval and signature:
Honble Shri Ashok Jindal, 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 : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
M/s. Richardson & Cruddas (1972) Ltd.
:
Appellants
Versus
CCE Nagpur
Respondents
Appearance Shri P.V. Sadavarte, Advocate for Appellants Shri S.M. Vaidya, JDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 21.09.10 Date of Decision : 21.09.10 ORDER NO.
Per : Ashok Jindal The appellant has filed this appeal against the order of Commissioner (Appeals) who hold that as the assessment has not been challenged by the appellant, refund claim is not maintainable.
2. The facts of the case are that the appellant filed a refund claim before the Jurisdictional Dy. Commissioner. A show-cause notice was issued to them on various grounds for rejection of their refund claim and one of the grounds was that the appellants had filed ER-1 Return and the same has been accepted by the department which was not challenged by the appellant. Hence, the same cannot be reopened without challenging the said assessment of ER-1 return. Aggrieved from the said order the appellant is before me.
3. The learned Counsel for the appellants submitted that in the case of M/s Nagpur Transwell Power P. ltd. vide Order No. A/429/10/SMB/C-IV dated 18.8.2010 this Tribunal has held that in such cases assessment need not to be challenged as there is no provision under Central Excise Act, 1944.
4. On the other hand the learned DR submitted that, in the case of CCE Kanpur vs. Flock (India) Pvt. Ltd. 2000 (120) ELT 285 (S.C.) the Honble apex court has held that without challenging the assessment, the appeal is not maintainable and reiterate the impugned order.
5. Heard both sides.
6. I have gone through the submission made by both sides and I find that the issue has dealt with by this Tribunal in the case M/s Nagpur Transwell Power P. ltd. (supra) as hereunder:- 7.1 To decide the issue, I have gone through the provision of Section 35 of Central Excise Act, 1944 which deals with the situation which are challenged, are reproduced as under:-
35. Appeals to Commissioner (Appeals). (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a (Commissioner of Central Excise) may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the (Commissioner (Appeals)) (within sixty days) from the date of the communication to him of such decision or order:
(Provided that ** {(1A)*** 7.2 Going through the provisions of Section 35, it is clear that any person who is aggrieved by any decision or order passed under this Act by a Central Excise Officer may appeal to Commissioner (Appeals) within 60 days from the date of communication to him of such decision or order. According to the reading of the same, it is clear that first the order should be passed by the Central Excise officer or the decision is to be taken by the Central Excise Officer. Secondly the said decision or the order has to be communicated to the assessee. In this case, neither any decision nor any order has been passed by the Central Excise officer which was communicated to the appellants. While granting stay to the appellants, this Tribunal has also observed that an appeal under Section 35 of the Central Excise Act should be preferred to the Commissioner (Appeals) against the order passed or decision taken by the Central Excise Officer or sub-ordinate to him. It is difficult to envisage that the said provision of law provides for an appeal against the self assessment. In the case of Gimatex Industries Pvt. Ltd. (supra) this Tribunal has held that the proposition that assessment includes self assessment is not correct for the purpose of appeal under Section 35F of the Central Excise Act, 1944. In this case also neither any decision nor any order of the Central Excise Officer is available. Challenging the same does not arise at all. Accordingly, the case law cited by the appellants are squarely applicable to this case.
8. Accordingly, in the absence of any decision or any order passed by the Central Excise Officer, no appeal can be filed. The case law relied upon by the lower authority in the case of Priya Blue Industries Pvt. Ltd. and Flock (India) Pvt Ltd. (supra) are not applicable to this case as in both those cases there were orders/endorsement of assessment of the Central Excise Officer/Custom Officer. Accordingly, I do not find any merit in the impugned order and the same is set aside. The appeal is allowed with consequential relief.
7. Accordingly, in this case also I hold that ER-1 Return which have been accepted by the department is need not to be challenged. In the above view, the impugned order is set aside and the appeal is allowed.
(Pronounced in Court) (Ashok Jindal) Member (Judicial) nsk 4