Custom, Excise & Service Tax Tribunal
M/S Shiv Saraswati Steel Industries vs Cce, Chandigarh on 19 December, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 19.12.2011
Coram:
Honble Shri Rakesh Kumar, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3.
Whether their Whether their Lordships wish to see the fair copy of the order?
4.
Whether order is to be circulated to the Department Authorities?
Excise Appeal No. 2223 of 2011 with Excise Stay No. 2919 of 2011
(Arising out of Order-in-Appeal No. 177/CE/CHD-I/2011 dated 30.05.2011 passed by the Commissioner (Appeals), Central Excise,Chandigarh).
M/s Shiv Saraswati Steel Industries Appellant
Vs.
CCE, Chandigarh Respondent
Appearance Appeared for Appellant : Shri Vikrant Kackria, Advocate Appeared for Respondent : Ms. R. Jagdev, DR CORAM: HONBLE SHRI RAKESH KUMAR, MEMBER (TECHNICAL) Order No.dated.
Per Rakesh Kumar:
In this case during the course of investigation against the appellant, on instructions of the investigating officer the appellant deposited an amount of Rs. 8 lakhs (Rs. 5 lakh on 3.3.2008 and Rs. 3 lakh on 26.3.2008). Subsequently, on 14.11.2008 the appellant filed an application for refund of this amount which was rejected by the jurisdictional Deputy Commissioner on 6.2.2009. However, on appeal to Commissioner (Appeals), the Commissioner (Appeals) vide order-in-original dated 25.6.2009 set aside the order of the Deputy Commissioner and directed grant of refund. Against this order of the Commissioner (Appeals), the department filed an appeal No. E/2692/2009-SM before the Tribunal. In pursuance of the order dated 25.6.2009 of the Commissioner (Appeals) the jurisdictional Assistant Commissioner on 19.08.2009 sanctioned the refund in pursuance of the application dated 19.08.2009 filed by the appellant. Subsequently, the appeal No. E/2692/2009-SM filed by the department against the Commissioner (Appeals) order became final. However, in the meantime, the department again filed review appeal against the refund sanction order dated 20.11.2009. The Assistant Commissioner in respect of this review appeal, the Commissioner (Appeals) vide order-in-appeal dated 30.05.2009 set aside the Assistant Commissioner s order sanctioning the refund. Against this order of the Commissioner (Appeals), the present appeal has been filed alongwith the stay application.
2. Heard both sides. Though, this matter is listed today for hearing of the stay application. After hearing both sides, I am of the view that the same can be disposed of finally.
3. Shri Vikrant Kackaria, Advocate pleaded that the refund have been sanctioned by the Assistant Commissioner vide order dated 20.11.2009 in pursuance of Commissioner (Appeals) order dated 25.6.2009; that the department appeal to the Tribunal against the Commissioner (Appeals) order has been dismissed by the Tribunal vide final order No. 379/2011-SM (BR) dated 23.6.2011 ; that in view of this the refund has been correctly paid and as such subsequent order of the Commissioner (Appeal) reversing the refund sanction order is invalid and not sustainable. He, therefore, pleaded that the impugned order is not correct.
4. Mrs. R. Jagdev, ld. DR pleaded that subsequent to the investigation a duty demand of Rs. 3620819/- has been confirmed against the appellant; that the department is entitled to reverse this demand from the appellant under the provision of Section 11 of Central Excise Act and that refund has been wrongly granted by the jurisdictional Assistant Commissioner.
5. I have carefully considered both the sides and perused the record. The amount of Rs. 8 lakhs has been paid by the appellant during investigation and since this payment was followed by confirmation of duty demand they applied for refund on 14.11.2008. Though, the refund claim was finally rejected by the jurisdictional Deputy Commissioner vide order dated 6.2.2009, this order of the Deputy Commissioner was set aside by the Commissioner (Appeals) vide order dated 25.6.2009 and he directed grant of the refund. This order of the Commissioner (Appeals) has been upheld by the Tribunal vide final order No. 379/2011-SM (SM) dated 23.6.2011. I find that the order dated 25.6.2009 which subsequently was upheld that the appellant had filed a refund application before the Assistant Commissioner and the Assistant Commissioner on 20.11.2009 has sanctioned the refund. Thus, the refund has been sanctioned by the Assistant Commissioner on the basis of the Commissioner (Appeals) order dated 25.6.2009 which has been upheld by the Tribunal vide final order dated 23.6.2011. In view of this, department could not again review the Assistant Commissioners order and file a review appeal before the Commissioner (Appeals). The Commissioner (Appeals) order dated 30.5.2011 is, therefore, not sustainable. The same is set aside. The appeal as well as stay application are allowed.
(Dictated and Pronounced) (Rakesh Kumar) Member (Technical) Pant 1