Custom, Excise & Service Tax Tribunal
M/S. Indian Potash Ltd vs Commissioner Of Central Excise on 13 June, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 668 of 2008-SM
Date of Hearing/decision : 13.6.2012
[Arising out of Order-in-Appeal No. 195-CE /APPL/ ALLD/2007 dated 10.12.2007 passed by the Commissioner of Customs & Central Excise (Appeals), Allahabad]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, 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 authoritative report or not?
3. Whether Their Lordships wish to see the fair :
copy of the Order?
4. Whether Order is to be circulated to the :
Departmental authorities?
M/s. Indian Potash Ltd. Appellants
Vs.
Commissioner of Central Excise Respondent
Allahabad
Appearance:
Shri Mayank Garg, Advocate for the Appellants
Shri Sanjay Jain, AR for the Respondent
ORAL ORDER NO . ________________________
Per Archna Wadhwa:
After hearing both the sides, I find that proceedings were initiated against the appellant for denial of modvat credit vide show cause notice dated 10.4.96. The said show cause notice culminated into an order passed by original adjudicating authority disallowing the credit. The appellant, accordingly, debited the amount from their Cenvat credit.
2. On an appeal filed against the said order, Commissioner (Appeals) upheld the denial of modvat credit vide his order in appeal No. 71-CE/ALLD/97 dated 23/25.3.97. There against the revenue again approached the appellant for deposit of rejected cenvat credit. Without realizing that they have already reversed the credit, appellant again paid the duty through their PLA on 28.5.97.
3. The said order of Commissioner (Appeals) was challenged before Tribunal and vide its order dated 6.10.2000, the matter was remanded to the Commissioner (Appeals). In remand proceedings Commissioner (Appeals) allowed the credit vide its order dated 8.6.04. The appellant in terms of said order, credited back the amount reversed through cenvat credit account. There is no dispute about the above fact.
4. As second time payment was also made by appellant through PLA, they filed an application for refund of payment from PLA account on 24.8.04. They were issued a show cause notice on 4.11.04 proposing rejection of said refund claim, on the ground of time bar. The said show cause notice was adjudicated by the original adjudicating authority holding the claim to be barred by limitation.
5. The said order of adjudicating authority was again challenged before Commissioner (Appeals). The appellate authority vide its order dated 25.10.05 held that second time payment through PLA was an accounting error and is required to be rectified without any time bar issue. He accordingly set aside the order of original adjudicating authority and allowed the refund.
6. In terms of the above order of Commissioner (Appeals), the Asstt. Commissioner executed the same and sanctioned the refund claim vide its order dated 24.4.06. The said order of the Assistant Commissioner was appealed against by the Revenue before Commissioner (Appeals), who held the demand to be barred by limitation vide its present impugned order. Hence, the present appeal.
7. Undisputed fact on record is that the Commissioner (Appeals) vide its earlier order dated 25.10.2005 had allowed the refund claim. The said order of Commissioner (Appeals) was never put to challenge by the Revenue before Tribunal and as such had attained finality. The Asstt. Commissioner rightly allowed the refund claim in terms of the above order of Commissioner (Appeals). There was no occasion for the revenue to feel aggrieved with the said refund order of the Asstt. Commissioner, when they had not challenged the earlier order of Commissioner (Appeals). In any case, when they have challenged the said order, Commissioner (Appeals) should have taken into account the entire development including the earlier order of Commissioner (Appeals) dated 25.10.05 allowing the refund by rejecting the refund claim on time bar. Such facts were probably not placed before Commissioner (Appeals).
8. In view of the above, I set aside the impugned order of Commissioner (Appeals) and restore the order of Assistant Commissioner dated 24.4.06 granting refund.
9. The appeal is allowed in the above terms.
(Pronounced in the open court )
( Archana Wadhwa ) Member(Judicial)
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