Commissioner Of Customs & vs Ojaswi Marbles & Granite Pvt. Ltd

Arising out of the order in appeal No.176-CE/BPL/2006 dated 20.7.2006 passed by the Commissioner , Customs ,Central Excise & Service Tax (Appeals), Bhopal.

For approval and signature:

Honble Mr. Justice G. Raghuram, President

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 26 of 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?

Commissioner of Customs & .. Appellant

Central Excise, Bhopal

Vs.

Ojaswi Marbles & Granite Pvt. Ltd. . Respondent

Appearance:

Present Shri B.B. Sharma, A.R for appellant/Revenue

Present Mrs. Sukriti Das, Advocate for the respondent/assessee.

Coram: Honble Mr. Justice G. Raghuram, President

Final Order No. 51651/2015

Per Justice G. Raghuram:

Revenue is in appeal against the order passed by the ld. Commissioner (Appeals), Customs, Central Excise and Service Tax, Bhopal dated 20.7.2006. The impugned order allowed the appeal preferred by respondent-assessee against an undated adjudication order passed by the Assistant Commissioner, Customs & Central Excise Division, Jabalpur in May 2006. The primary order rejected a refund claim for Rs.16,37,148/- which was remitted (under protest) towards excise duty on processing of dolomite slabs and tiles which the assessee claimed was not a process amounts to manufacture exigible to the levy of excise duty. The assessees claim was rejected by the primary authority.

2. In another proceedings, an order of assessment confirming the liability to the duty remitted by the assessee under protest was passed. Aggrieved thereby, the assessee preferred an appeal which was allowed by the ld. Commissioner (Appeals), Customs, Central Excise and Service Tax, Bhopal, vide the order dated 31.3.2005.The Appellate Commissioner by this order concluded that cutting of marble slabs does not amount to manufacture and no duty is leviable. Against the appellate order dated 31.3.2005, Revenue preferred Central Excise Appeal No.2623/2005, before this Tribunal. By the order dated 20.7.2011 we set aside the Appellate Commissioners order dated 31.3.2005 and remanded the matter to the lower appellate authority for a fresh decision after providing reasonable opportunity of hearing to both sides.

3. Against the order of rejection of its claim for refund of Rs.16,37,148/- passed by the primary adjudication authority, the assessee preferred an appeal which was allowed by the impugned order, in particular on the ground that the Appellate Commissioner by the order dated 31.3.2005 had concluded that goods manufactured and cleared by the assessee were not excisable and liable to duty.

4. Since the ld. Commissioner (Appeals)s order dated 31.3.2005 was set aside by this Tribunal vide the Final Order dated 20.7.2011 in Revenues Central Excise Appeal No.2623/2005 and since this order was the basis for the impugned order for granting refund of the amount claimed, the impugned order is unsustainable.

5. It is represented by both parties that the matter remitted by this Tribunal vide the Final Order dated 20.7.2011 (supra) is pending consideration before the ld. Commissioner (Appeals), Customs, Central Excise and Service Tax, Bhopal. In the facts and circumstances adverted to herein before, the impugned order cannot be sustained and the issue whether the respondent-assessee is entitled to refund must be decided after a fresh order is passed by the ld. Commissioner (Appeals) in matter remitted by this Tribunal vide our Final Order dated 20.7.2011.

6. To avoid conflicting decisions, it is appropriate that the same Commissioner (Appeals) should hear and decide afresh the appeal preferred by the respondent against the primary order rejecting the claim for refund as well as the appeal against the primary order confirming the assessees liability to excise duty.

7. On the analyses above, the appeal is allowed. The impugned order dated 20.7.2006 passed by the ld. Commissioner (Appeals), Customs, Central Excise and Service Tax, Bhopal is set aside. The ld. Commissioner (Appeals) is directed to hear and dispose of the appeal preferred by the respondent-assessee M/s Ojaswi Marble & Granite (P) Ltd. against the primary adjudication order passed in May 2006 by the Assistant Commissioner, Customs and Central Excise Division , Jabalpur rejecting the claim of refund as well as the appeal preferred by the same assessee against the primary adjudication order confirming the assessees liability to excise duty which stands remitted to the appellate Commissioner vide the Final Order dated 20.7.2011 of this Tribunal in Central Excise Appeal No.2623/2005, preferred by Revenue. No costs. Cross-Objections filed by the respondent/assessee are disposed of accordingly.

(Justice G. Raghuram)

President

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