Customs, Excise and Gold Tribunal - Delhi
Collector Of Central Ex. vs Sahuwala Cylinders Ltd. on 3 December, 1997
Equivalent citations: 1998(99)ELT446(TRI-DEL)
ORDER G.A. Brahma Deva, Member (J)
1. This is an appeal filed by the department against the impugned order dated 25-8-1988 passed by the Collector (Appeals), Madras.
2. Heard both sides with reference to the appeal filed by the department.
3. The respondents M/s. Sahuwala Cylinders Ltd., filed a refund claim towards excess duty paid by them on the clearance of the L.P.G. cylinders cleared during the period 1-4-1986 to 12-9-1986 on the ground that provisons of Notification No. 175/86-C.E., dated 1-3-1986 as amended are applicable to them. The Assistant Collector as per his adjudication order dated 24/30-9-1987 allowed the refund of Rs. 6,23,957.26. Not being satisfied with the finding given by the Assistant Collector the department has filed an appeal before the Collector of Central Excise (Appeals), Madras. Collector (Appeals) in his order dated 29-3-1988 set aside the order of the Assistant Collector. We find that against that order the party has filed an appeal before the Tribunal and the same was considered by the Tribunal and accepted the contentions of the assessee in allowing the appeal. In the meanwhile, the Superintendent has raised demand in form DD-2, dated 26-4-1988 in pursuance the order of the Collector (Appeals) dated 29-3-1988. Against that demand also, the party has filed an appeal before the Collector of Central Excise (Appeals), Madras. The Collector (Appeals) has accepted the contentions of the assessee observing that demand issued without a show cause notice or an order passed by the Assistant Collector is irregular and, accordingly, he set aside the demand raised by the Superintendent in the impugned order.
4. We find that the order passed by the Collector (Appeals) dated 29-3-1988 has been set aside by the Tribunal on an appeal filed by the assessee and since it has become conclusive on the issue involved in this case and in the absence of any appeal filed by the department against the order of the Tribunal the proceedings initiated through this appeal is irregular and not in accordance with the provisions of the Act. Furthermore, the Collector (Appeals) in his order has rightly observed that Superintendent's DD-2 cannot be considered to be a confirmation of show cause notice under Section 11A inasmuch as the Superintendent of Central Excise lacks jurisdiction to demand duty under Section 11A. In any angle of the case, we do not find any substance in the appeal filed by the department and in the result, the appeal is dismissed.