TMI Blog2020 (1) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... ] where it was held that the Commissioner (A) continues to exercise the powers of the adjudicating authority in the matters of assessment. Under Section 35B any person aggrieved by the order of the Commissioner as an adjudicating authority is entitled to move the Tribunal in appeal. Section 35B indicates that the decision of order passed by the Commissioner (A) shall be treated as an order of an adjudicating authority. In the circumstances the High Court had erred in holding that the assessee was not entitled to agitate the question of dutiability in appeal before the Tribunal. The appeal filed by the department is allowed by way of remand to the adjudicating authority to decide the Refund claim in view of the decisions of the superio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collected by the Department of Revenue. In view of the aforesaid clarification, the Respondent vide their letter dated 01.11.2004 intimated to the Department that they intend to discontinue the payment of EC on OID Cess from November 2004. However, Department vide letter dated 12.01.2005 intimated to the Respondent that Education Cess is leviable on all kinds of cesses collected as a duty of excise and further directed the Respondent to pay arrear EC and continue payment of the same. Following the instructions of the Department, the Respondent continued payment of EC and SHEC on Oil Cess. Thereafter in 2014, the Department issued Circular No.978/2/2014-CX dated 07.01.2014 wherein it was clarified that EC and SHEC are not to be calculated on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as rejected by holding that the limitation of one year provided in section 11B of the Act is applicable to the present case. It was further held that the claim is hit by the doctrine of unjust enrichment. 3. Being aggrieved by the said order, the Respondent preferred an Appeal before the lower Appellate Authority. The learned Commissioner(Appeals) vide the Order-in-Appeal dated 17.05.2017 passed the order of remand on the ground that adjudicating authority has not observed the principles of natural justice as the order was passed after expiry of one and half year without explaining any reason for such delay. Hence, the matter was remanded to the adjudicating authority for re-adjudication. The said remand order passed by the learned Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejection of refund claim of EC and SHEC paid on OID cess by adjudicating authority was neither discussed by the learned Commissioner(Appeals) in its order nor by the Department in the present appeal. 6. The learned Advocate further submits that the main controversy (rejection of refund claim on account of limitation) involved in the present case stands concluded in favour of the Respondents by the Hon ble High Court of Gujarat in Joshi Technologies International, INC-India Projects v. Union of India, 2016 (339) E.L.T. 21 (Guj.). In this case, same issue as the present one came up for consideration before the Hon ble High Court. Here, the assessee had filed for refund of education cess and SHE cess paid on Oil Cess based on the Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 the Commissioner (A) had remanded the matter to the adjudicating authority the question of quantification. Therefore, it was open to the appellant to appear before the adjudicating authority and submit contentions on quantification of duty liability. In the present matter in the second round the appellant appeared before the adjudicating authority and pointed out in the alternative that the duty demanded from the appellants at the rate of ₹ 94,03,500 was erroneous as the appellants were entitled to the benefit of Modvat credit. From this it cannot be said that the question of excisability or dutiability had become final. The conclusion of the Commissioner (A) in his order dated 22-3-2000 was not binding on the Tribunal. Further one ..... X X X X Extracts X X X X X X X X Extracts X X X X
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