Custom, Excise & Service Tax Tribunal
M/S.Maud Tea Estate vs Commissioner Of Central Excise, ... on 15 September, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No. E/593/07
(Arising out of Order-in-Appeal No.16/CE(A)/GHY/07 dated 30.07.2007 passed by the Commissioner of Customs & Central Excise(Appeals), Guwahati.)
FOR APPROVAL AND SIGNATURE
HONBLE SHRI H.K.THAKUR, MEMBER(TECHNICAL)
HONBLE SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL)
1. Whether Press Reporters may be allowed to see
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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s.Maud Tea Estate
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Guwahati Respondent (s)
Appearance:
Shri A.K.Das, Advocate for the Appellant (s) Shri S.Mukhopadhyay, Supdt.(AR) for the Revenue CORAM:
HONBLE SHRI H.K.THAKUR, MEMBER(TECHNICAL) HONBLE SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL) Date of Hearing :- 15.09.2016 Date of Pronouncement :- 15.09.2016 ORDER NO.FO/A/76021/2016 Per Shri H.K.Thakur.
This Appeal has been filed by the Appellant against Order-in-Appeal No.16/CE(A)/GHY/07 dated 30.07.2007 on the ground that refund is time barred as the same was filed after four years from the date of payment of duty.
2. Shri A.K.Das (Advocate) appearing on behalf of the Appellant submitted that Appellant is availing area based exemption No.33/99-CE dated 08.07.1999 and filed refund claim of Rs.32,57,890/-(Rupees Thirty Two Lakh Fifty Seven Thousand Eight Hundred and Ninety only). That the same was sanctioned by the Adjudicating authority under order No.16/Ref/05-06 dated 12.12.2005. That the same Order-in-Original dated 12.12.2005 was reviewed by the department and has been set aside by first appellate authority.
3. It is the case of the Appellant that the same issue of time bar nature of their refund was decided by Commissioner(Appeals) under Order-in-Appeal No.70/CE(A)/GHY/2004 dated 20.07.2004. Learned Advocate made the Bench go through para 8 of this Order-in-Appeal dated 20.07.2004 where Commissioner(Appeals) has held that refund claim of the Appellant is not time barred. That this order passed by Commissioner(Appeals) has been accepted by the department. Learned Advocate vehemently argued that once an Order-in-Appeal on an issue has been accepted by the department, then on the same issue they cannot file another Appeal in the same proceedings. It is also the case of the Appellant that first appellate authority cannot take different views in the same proceedings of the Appellant.
4. Shri S.Mukhopadhyay, Supdt.(AR) appearing on behalf of the Appellant argued that each refund claim has to be treated independently and the earlier order decided on merits cannot be considered as a bar in rejecting a refund claim.
5. Heard both sides and perused the case records. The issue on merits was decided in favour of the Appellant as per Order-in-Appeal dated 20.07.2004 according to which refund claim was sanctioned by the Adjudicating authority under Order-in-Original dated 12.12.2005. It is observed from Order-in-Appeal dated 30.07.2007 that first appellate authority extended personal hearing to the Appellant on three occassions, but Appellant herein did not attend any of those personal hearings. Even in the cross-objections, filed by the Appellant before the first appellate authority, also Appellant did not bring out that the earlier Order-in-Appeal dated 20.07.2004 passed by the same appellate authority to the effect that time bar aspect of the refund claim already stands decided for the same refund claim. However, in the interest of justice Order-in-Appeal dated 30.07.2007 is set aside as the same appellate authority cannot take contrary views on an issue in the same proceedings on time bar nature of the refund claim. Accordingly Appeal filed by the Appellant is allowed by way of remand to the First Appellate authority by setting aside the Order-in-Appeal dated 30.07.2007. First appellate authority should extend an opportunity of personal hearing to the Appellant to explain their case. Appellant should also co-operate with the proceedings and bring out their point of view clearly before the first appellate authority.
6. Appeal filed by the Appellant is allowed by way of remand to the first appellate authority.
(Dictated and pronounced in the open court.)
SD/ SD/
(P.K.CHOUDHARY) (H.K.THAKUR)
MEMBER(JUDICIAL) MEMBER(TECHNICAL)
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Appeal No.E/593/07