Commissioners Of Central Excise vs M/S Krishak Bharti Co Op Ltd
- CitationAppeal No. : E/1167/2007
Ratio decidendi
The rule this decision rests on
The Tribunal, having noted that its earlier final order in the same dispute between the parties had not been set aside by any appellate court, held that where the earlier decision of the Tribunal subsists unreversed, an adjudicating authority's order dropping proceedings on the strength of that decision is not to be interfered with by the appellate authority, and the Revenue's appeal against such an order is liable to be rejected.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[ Arising out of OIO-05/DEM/2007 dtd 20.8.2007 passed by Commissioners of Central Excise, Customs and Service Tax-SURAT-I ]
Commissioners of Central Excise, Customs and Service Tax-SURAT-I - Appellant(s)
Vs
M/s Krishak Bharti Co Op Ltd - Respondent (s)
Represented by :
For Assessee : Shri Anand Nainawati, Advocate For Revenue : Shri J Nagori, Authorised Representative
For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble 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?
No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No 3 Whether their Lordships wish to see the fair copy of the Order?
Seen 4 Whether Order is to be circulated to the Departmental authorities?
Yes
CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical)
Date of Hearing / Decision : 21/09/2015
ORDER No. A/11524 / 2015 dtd 21/9/2015
Per : Mr.P.K. Das,
The Revenue filed this appeal against the order of Commissioner of Central Excise and Customs, Surat-I, where the proceedings initiated by show cause notice was dropped.
2. After hearing both the sides and on perusal of the records, we find that the respondents were engaged in the manufacture of Urea. They received Natural Gas Liquefied (NGL) from M/s ONGC through HPCL at concessional rate of duty under Notification No. 75/84-CE dtd 1.3.1984 as amended. There was a dispute on the eligibility of the concessional rate of duty under the said Notification and the respondent had paid the duty. The Tribunal decided the issue in favour of the respondent and thereafter they filed refund claims. The Adjudicating Authority rejected the refund claim. The Commissioner (Appeals) allowed the refund claims and also paid to the respondent. Revenue filed appeal before the Tribunal. By Final Order No. A/919-920/WZB/AHD/2007 dtd 23.4.2007, the Tribunal rejected the appeal filed by the Revenue against the order of the Commissioner (Appeals). In the meantime, a show cause notice was issued proposing to recover the erroneous refund, paid to the respondent. By the impugned order, the Adjudicating authority dropped the proceeding, as the matter was decided by the Tribunal, against which, the Revenue filed the present appeal.
3. The relevant portion of the impugned order is reproduced below :
The decision of Honble CESTAT final order No A/919&920/ WZB/AHD/2007 dtd 23.4.07 rendered in this case has already been accepted by the Department. The facts that the issue on the demands for recovery of refund of Rs 3,69,39,000/- has already been settled in favour of the party as well as the fact that the appeals filed by the Department against the Order in Appeal No RG/336-337/SRT/2002 dtd 29.3,2002 and YPP/63/SRT/2004 dtd 31.01.04 have been rejected by the Honble CESTAT go in favour of Kribbco.
4. The Learned Authorised Representative for the Revenue submits that the Dept. had not accepted the order of the Tribunal and they filed the appeal before the High Court. The Learned Advocate on behalf of the Respondent submits that the appeal filed by Revenue was dismissed by the Honble High Court by Order dtd 30th Sept. 2010 in Tax Appeal No 1 of 2010 with Tax appeal No 1455 of 2007 (Commissioner of Central Excise & Customs, Surat I vs Krishak Bharati Co-op Ltd). The Appeal was dismissed, as the Revenue failed to produce the clearance from the Committee of Disputes as per the decision of Honble Supreme Court, with liberty to apply for revival as and when clearance is obtained from the Committee. The Learned Authorised Representative submits that after the said order Revenue filed appeal, which is still pending. In this contest, the Learned Authorised Representative placed a copy of the letter dtd 8.7.2015 of the Additional Commissioner (Review), Central Excise, Customs and Service Tax, Surat II before the Bench.
5. In any event, we find that the Tribunal order has not yet been set aside by the appellate court till date. So, we do no find any reason to interfere the order of the Commissioner. Accordingly, the appeal filed by the Revenue is rejected.
(Dictated and pronounced in the Court)
(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)
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