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2020 (1) TMI 1448 - AT - Central ExcisePrinciple sof natural justice - 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 - HELD THAT:- In his impugned order, the only issue taken into consideration for remanding the case to adjudicating authority is delay in passing the order from the date of personal hearing. The issue is no more res integra and has been decided by the Hon’ble Hon’ble Supreme Court in the case of MIL INDIA LTD. VERSUS COMMISSIONER OF C. EX., NOIDA [2007 (3) TMI 8 - SUPREME COURT] 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 superior Courts.
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