Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2023 (7) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (7) TMI 579 - AT - Central ExciseViolation of judicial discipline - reopening and review of previous Tribunal Order for subsequent period - while the accepting the order of tribunal for the earlier periods, SCN issued for the subsequent period involving the same issue - recovery of erroneous refund - whether the Department can reopen and review the order of the Tribunal, by way of a show cause notice on the grounds that refund granted was erroneous, where no appeal was filed against the order of the Tribunal? HELD THAT:- The Tribunal’s order which attained the finality by not filing an appeal was not implemented in spirit and a review process has been initiated through the back door by issuance of a show cause notice. This is clearly against the principles of judicial discipline. In case, the protective demand was issued before the finalization of the appeal by CESTAT, it was within the permissible limits of the Department to withdraw the same. It is found that the Original Authority vide OIO No.25-35/2020 dated 21.09.2020 has rightly discharged the same - Commissioner (Appeals) cannot sit in judgment of the Tribunal’s order and to hold the same to be issued “per incuriam”, whereas no appeal has been filed against the CESTAT Order and an appeal filed earlier on a case involving identical issue was withdrawn on monetary grounds. It is curious to note that whereas some 10 to 12 orders were passed on the issue against the very same appellant covering the periods before and after the period covered in the impugned order. The Revenue contends that there is no “estoppel” in Revenue’s matter. Maybe it so, it’s not open to the Department to open up a case which attained finality. In passing an order contrary to the order of the CESTAT and holding that the CESTAT order was “per incuriam”, learned Commissioner (Appeals) has exceeded his brief. Moreover, in the instant case, it is found that the Department has followed ‘pick and choose’ method making a joke of the judicial process and putting the appellant to unwarranted hardship by refraining from appealing past and future cases and selecting only case for review. The finding of the Commissioner as regards the applicability of the provisions of Section 11B to the facts of the case are incorrect and are as a result of incoherent reading of the provisions of the statute. The impugned order is set aside and the appeal is allowed.
|