Custom, Excise & Service Tax Tribunal
Cce, Jaipur-Ii vs M/S Sangam Processors (Bhilwara) Ltd on 7 October, 2009
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R. K. Puram, New Delhi COURT-I Date of hearing: 07.10.2009 Date of decision: 07.10.2009 Excise Appeal No. 538 of 2005 [Arising out of Order-in-Appeal No. 733(RM)CE/JPR-II/2004 dated 3/8.12.04 passed by the Commissioner (Appeals-II) Customs & Central Excise, Jaipur] For approval and signature: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri Rakesh Kumar, Member (Technical) ,,,,,,,,,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? CCE, Jaipur-II Appellant Vs. M/s Sangam Processors (Bhilwara) Ltd., Respondent
Appearance:
Appeared for the Appellant Shri B.L. Soni, SDR Appeared for the Respondent Shri B.L. Narshimhan, Advocate Coram: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri Rakesh Kumar, Member (Technical) Oral Order No.____ Per Shri Justice R.M.S. Khandeparkar:
Heard.
2. This appeal is a clear example of waste of time of the Tribunal and that of total non application of mind by the Commissioner who has filed the present appeal.
3. The facts as revealed from the record are that the assessee filed an application for refund which was allowed by the original authority but as the duty incidence had already been passed to the consumers, the claim being hit by principle of unjust enrichment, an appropriate order was passed by crediting the refundable amount to the Consumer Welfare Fund. The matter was carried in appeal by the assessee before the Commissioner (Appeals) without any success. The Commissioner Shri J. Chaturvedi at Jaipur filed the present appeal stating that he was aggrieved by the said order of the Commissioner (Appeals) with the following prayer:-
It is, therefore, prayed that the Para 6, 9 & 10 of the OIA No. 733 (RM)CE/ JPR-II/2004 dated 3/8.12.04 may please be ignored in view of corrigendum issued by Commissioner (Appeals) vide C. No. APPL/JPR-II/CE/BH/80/II/2003/1163 dated 8/14.12.04 to the said OIA while deciding appeal, if any, filed by the assessee or the same be set aside and the case may be remanded for fresh examination of the matter or any other order as deemed fit may be passed.
4. Once the authority below had found duty element having been transferred to the consumers and therefore had applied the principle relating to the bar of unjust enrichment and had credited the refundable amount to the Consumer Welfare Fund, one fails to understand as to how the Commissioner can be said to be aggrieved by such an order. If at all the assessee feels aggrieved by such order and files appeal, then nothing can prevent the Commissioner/ Department from filing cross-objection raising whatever objections they could want to raise; but till then, the present appeal is nothing short of the abuse of process of the Tribunal. In such circumstances, the appeal is dismissed with direction to the Registrar of the Tribunal to forward copies of this order to the Secretary (Revenue), Government of India as well as Chairman of the Board forthwith.
(Justice R.M.S. Khandeparkar) President (Rakesh Kumar) Member (Technical) /Pant/