M/S. S.V. Mestry Engg. Works vs Commissioner Of Central Excise, Mumbai

[Arising out of Order-in- Appeal No. YBD(106) MV/2011 dtd. 17/11/2011 passed by the Commissioner(Appeals), Central Excise Mumbai]

For approval and signature:

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? =======================================================

M/s. S.V. Mestry Engg. Works : Appellants

VS

Commissioner of Central Excise, Mumbai : Respondent

Appearance

Ms. Padmavati Patil, Advocate for the Appellant Shri. V. K. Shastri, Asst. Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 7/5/2015 Date of decision: 7/5/2015

ORDER NO.

Per : Ramesh Nair

This appeal is directed against Order-in- Appeal No. YBD(106) MV/2011 dtd. 17/11/2011 passed by the Commissioner(Appeals), Central Excise Mumbai, whereby Ld. Commissioner(Appeals) rejected the appeal of the appellant and upheld the order in-original dated 18/4/2011. Brief facts of the case is that appellant has claimed refund of Rs. 4,23,247/- on account of dropping the demand by order-in-original No. 83/56/AC/BVL/2010 dated 22/3/2010 as appellant had deposited this amount during investigation. The original authority has rejected refund claim on the ground that order-in-original No. 83/56/AC/BVL/2010 dated 22/3/2010 was set aside by the Commissioner(Appeals) and confirmed the demand. Though the appellant filed appeal before the Tribunal but no stay has been granted therefore refund was rejected on the ground of being pre-mature. Aggrieved by the said order appellant filed appeal before the Commissioner(Appeals) who rejected the appeal of the appellant. Aggrieved by the said impugned order dated 17/11/2011 the appellant is before me.

2. Ms. Padmavati Patil, Ld Counsel for the appellant submits that in case of demand, this Tribunal in the appeal No. E/281/11 allowed the appeal on 7/5/2015. Order was dictated and pronounced in the open court. Since demand confirmed by the Ld. Commissioner vide order dated 18/4/2011 has been set aside by this Tribunal in the Appeal No. E/281/11 consequently appellant become entitle for the refund.

3. On the other hand, Shri. V. K. Shastri, Ld. Asst. Commissioner(A.R.) appearing on behalf of the Revenue submits that refund was rejected only being pre-mature as demand was sustaining at the time of disposal of the refund and Ld. Adjudicating authority has not gone into factual aspect of the refund claim such as documentation, unjust enrichment, time bar etc. therefore matter should be remanded to the original authority for consideration of all these aspect and passing a fresh order.

4. I have carefully considered the submissions made by both sides and perused record.

5. Today I have passed order in appeal No. E/281/11 related to demand amount for which present appeal is for seeking refund. Since demand has been dropped, orders of the lower authorities rejecting the refund being premature, are not sustainable. I am in agreement with learned A.R. that since original authority has not dealt with factual aspect such as documentation, unjust enrichment, time bar etc, the matter deserves to be remanded to the original adjudicating authority . I therefore set aside the impugned order and remand the matter to the original adjudicating authority to dispose of refund of the appellant in accordance with law.

(Dictated in court)

Ramesh Nair Member (Judicial) sk

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