TMI Blog2017 (8) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... iece meal and the appellant having succeeded in the first round of litigation, the Department cannot raise, subsequently, another objection for rejection of the refund claims. The appellants have rightly contended that in such cases the principles of res judicata will apply - appeal allowed - decided in favor of appellant. - E/106/2011 - 41592/2017 - Dated:- 10-8-2017 - Smt. Archana Wadhwa, Judicial Member Shri Manoj Kumar, Advocate for the Appellant Shri B. Balamurugan, AC (AR) for the Respondent ORDER After hearing both sides, I find that the appellant is engaged in the manufacture of biscuits falling under the erstwhile Tariff Item No. 1C of Central Excise Act. They were using tin containers for packing of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner on 06.05.1986 and on appeal they stands succeeded, with directions to grant refund. It is seen that aggrieved by the order of the Commissioner (Appeals), vide which he had allowed the assessee's appeal, laying down that the value of tin containers is not required to be added in the assessable value of the biscuits, Revenue filed an appeal before the Tribunal, which was dismissed by the CESTAT vide its Order No. 154/1990A dated 20.02.1990. The said dismissal was on technical ground that there was no specific authorization by the Collector for filing an appeal, which was a statutory requirement under Section 35 (B) 2 of the Central Excise and Salt Act, 1944. Subsequently, a miscellaneous application was filed to recall the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected the refund claim dated 15.07.87 in terms of Section 11 B of the Central Excise Act. 6. Aggrieved with the said order of the Dy. Commissioner, the appellant filed an appeal before the Commissioner (Appeals) who rejected the same on the ground that the appellant has not been able to specify their refund claim based upon the documentary evidence. However, in respect of the provisions of Section 11 B, which were amended subsequently, as regards the unjust enrichment he held in favour of the assessee. Hence, the present appeal. 7. After hearing both sides and after going through the impugned order and the entire development in the case, I find that the sole question required to be decided is as to whether the appellant's refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that as the tin containers were not actually returned, they cannot be considered for abatement. This fact by itself leads to the inevitable conclusion that the duty was paid by the appellant on the value of the tin containers. The appellant having succeeded right upto the Supreme Court, a subsequent issuance of SCN, for the second time, in respect of the same refund claims cannot be appreciated. The adjudication cannot be done in piece meal and the appellant having succeeded in the first round of litigation, the Department cannot raise, subsequently, another objection for rejection of the refund claims. The appellants have rightly contended that in such cases the principles of res judicata will apply. 8. For the reasons rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
