Commissioner Of Central Excise, ... vs Tela Equipments Pvt. Ltd
- CitationAppeal No. BR(355)12/MV/2005 dated 31.1.2005 passed by Commissioner of Central Excise (Appe
Ratio decidendi
The rule this decision rests on
Where the Commissioner (Appeals) has decided the assessee's appeal in line with a prior Tribunal decision in the same matter, and that decision has been resolved in the assessee's favour on merits, there is no infirmity in following it and the Revenue's appeal against such an order is liable to be dismissed. Where a refund was sanctioned consequent upon the dropping of a demand, and the amount was deposited by the assessee during adjudication, a subsequent demand for recovery of that refund as erroneous cannot be sustained where the underlying merits have been decided in the assessee's favour by the Tribunal.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Appeal No. BR(355)12/MV/2005 dated 31.1.2005 passed by Commissioner of Central Excise (Appeals), Mumbai-V)
For approval and signature:
Honble Mr. P.K. Jain, Member (Technical) and Honble Mr. Ramesh Nair, Member (Judicial)
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1. Whether Press Reporters may be allowed to see : No 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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
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Commissioner of Central Excise, Mumbai-V Appellant Vs. Tela Equipments Pvt. Ltd. Respondent Tela Equipments Pvt. Ltd. Sudhir Tela Progress (I) Enterprises Advance Engg. Corporation
Appearance: Shri Ashutosh Nath, Assistant Commissioner (AR), for appellant Shri S.P. Mathew with Shri Stalin Mathew, Advocates, for respondent
CORAM: Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)
Date of Hearing: 22.4.2015 Date of Decision: 22.4.2015
ORDER NO
Per: P.K. Jain
Appeal E/85083/13
Brief facts of the case are that a show cause notice dated 7.3.2002 was issued to the respondent demanding duty on the grounds that refurbishing of old industrial valves amounts to manufacture. The said demand was dropped vide order-in-original No. 55/02 dated 14.6.2002 passed by the Joint Commissioner. The Revenue filed appeal against the said order before the Commissioner (Appeals) and the Commissioner (Appeals) vide order dated 29.8.2003, allowed the appeal of the Revenue by way of remand. Against the said order, the respondent-assessee filed appeal before this Tribunal and this Tribunal vide order No. A/388/11/EB/C-II dated 19.4.2011 in appeal No. E/4037/03, allowed the appeal of the respondent-assessee. It appears that the Revenue has filed an appeal before the Honble High Court and the same has been admitted appeal No. 20/12 dated 11.4.2012.
2. Consequent to the order of the Commissioner (Appeals) dated 29.8.2003, remand proceedings were initiated by the Joint Commissioner who, vide order-in-original No.443/2005 dated 28.10.2005, confirmed the demand in the remand proceedings. The respondent-assessee filed appeal against the said order before the Commissioner (Appeals) and the Commissioner (Appeals) allowed the appeal of the respondent-assessee vide the impugned order i.e. order-in-appeal No. BR/62-65/MV/2012 dated 28.9.2012. The Revenue has filed appeal against the said order of the Commissioner (Appeals), which is for consideration in the present appeal.
3. We find that in the impugned order, the Commissioner (Appeals) has allowed the appeal of the respondent-assessee following this Tribunals order in appeal No. E/4037/03 order No. A/388/11/EB/C-II dated 19.4.2011. In view of the said factual position, we do not find any merits in the appeal filed by the Revenue and accordingly the appeal filed by the Revenue is dismissed.
Appeal E/601/05
4. This is an appeal related to the above appeal. During investigation of the case in 2002, the respondent-assessee has deposited certain amount. The said amount was refunded by the Revenue consequent to the dropping of the demand vide order-in-original No. 55/02 dated 14.6.2002. Since the Revenue had filed appeal against the said order, a show cause notice demanding the said amount on the grounds of erroneous refund was issued to the respondent-assessee. The said demand notice was confirmed after the Commissioner (Appeals) allowed the appeal of the Revenue by way of remand vide order dated 29.8.2003. The related order-in-original number is 357/36/DC CEX/KDN/2004 dated 26.3.2004. The respondent-assessee filed appeal against the said order before the Commissioner (Appeals) and the Commissioner (Appeals) vide order No. BR(355)12/MV/2005 dated 31.1.2005, allowed the appeal of the respondent-assessee. The Revenue is in appeal against the said order of the Commissioner (Appeals).
5. Since this Tribunal vide order dated 19.4.2011 has held in favour of the respondent-assessee on merits, we do not find any infirmity in the order passed by the Commissioner (Appeals). We find that in the impugned order, the Commissioner (Appeals) has allowed the appeal of the respondent on the grounds that the respondent-assessee has deposited the said amount of refund during adjudication proceedings and the Assistant Commissioner has sanctioned the said refund claim as the same was arisen consequent to the order passed by the Joint Commissioner and the said decision of the Assistant Commissioner sanctioning the refund claim is in order. We do not find anything incorrect in the said decision of the Commissioner (Appeals). Moreover, as mentioned in the earlier case, this Tribunal has held in favour of the respondent-assessee vide order dated A/388/11/EB/C-II dated 19.4.2011 in appeal No. E/4037/03. In view of this position also, we do not find anything wrong in the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is dismissed.
6. In view of the above, both the appeals are dismissed. The cross objections filed by the respondent-assessee are also disposed of.
(Pronounced in Court)
(Ramesh Nair) Member (Judicial) (P.K. Jain) Member (Technical)
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