Custom, Excise & Service Tax Tribunal
M/S. S.A. Safiullah & Co vs Cce, Trichy on 12 February, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/S/40031/2013 and E/40041/2013
(Arising out of Order-in-Appeal No. 255/2012 dated 25.9.2012 passed by the Commissioner of Central Excise (Appeals), Trichy)
For approval and signature:
Honble Shri P.K. Das, Judicial Member
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 authoritative report or not?
3. Whether the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
M/s. S.A. Safiullah & Co. Appellant
Vs.
CCE, Trichy Respondent
Appearance Shri J. Shankar Raman , Advocate, for the Appellant Shri K.S.V.V. Prasad, Jt. Commissioner (AR) for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Date of Hearing: 12.02.2013 Date of Decision: 12.02.2013 Final Order No. ____________ The issue involved in this appeal lies in a narrow compass and therefore, after allowing the stay application, the appeal is taken up for hearing and disposal.
2. The relevant facts of the case in brief are that a show-cause notice dated 6.2.2004 was issued for erroneous refund of Rs.9,57,895/-. It has been alleged that the refund was granted in violation of the limitation and unjust enrichment. A portion of the refund was rejected and went up to the Tribunal wherein it was held that the refund is within the period of limitation. Revenue filed appeal before the Honble Madras High Court against the order of the Tribunal, which is still pending. It appears from the order of the Commissioner (Appeals) that the show-cause notice dated 6.2.2004 was kept in call book category as the Departments appeal is pending before the Honble High Court. In the meantime, the original authority dropped the show-cause notice. Revenue filed appeal before the Commissioner (Appeals). In the impugned order, the Commissioner (Appeals) set aside the adjudication order and allowed the departmental appeal on the ground that the adjudicating authority decided the case without considering that the Departments appeal against the Tribunals order is pending in the Honble High Court and therefore the said order is premature.
3. After hearing both sides and on perusal of the records, the main contention of the learned counsel is that the Commissioner (Appeals) passed the order without considering the order of the Tribunal. In this context, the learned AR submits that the departmental appeal before the Honble High Court is still pending and the show-cause notice was kept in call book and therefore the adjudication order should not have been passed, which has no serious objection on the part of the appellant. In view of that, I find it proper to set aside both the orders and I remand the matter to the original authority to decide the matter afresh in accordance with law. The appeal is allowed by way of remand to the original authority. Stay application also gets disposed of.
(Dictated and pronounced in open court) (P.K. Das) Judicial Member Rex 2