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2024 (6) TMI 295 - AT - Central ExciseRecovery of erroneous refund of the duty paid in PLA - no substantial expansion exceeding 25% of installed capacity - Suppression of Facts - No expansion of critical machineries related to the installed capacity - Wrong assessment of the installed capacity - period July 2008 to October 2008 February 2009 and April 2009 to July 2009 ( upto 07.07.2009). Substantial expansion of the Appellant unit - HELD THAT - The issue of substantial expansion of the Appellant unit has already been adjudicated by the Ld. Commissioner of Central Excise in COMMR. OF C. EX. DIBRUGARH VERSUS HINDUSTAN COCA COLA BEVERAGES (P) LTD. 2005 (1) TMI 504 - CESTAT KOLKATA against which the Revenue filed an appeal before this Tribunal. This Tribunal vide order dated 20th January 2005 rejected the appeal of the Revenue. Therefore raising the issue of substantial expansion again by the Ld. Commissioner (Appeal) is bad in law which has attained finality. In the impugned order the Ld. Commissioner (Appeals) has gone beyond the scope of the appeal and held that the appellant has not fulfilled the condition of substantial expansion. It is observed that this issue was not before the Ld. Commissioner (Appeals). The issue before the Ld. Commissioner (Appeals) was that the refund sanctioned to the appellant for the period in dispute was erroneous or not. However the Ld. Commissioner (Appeals) has decided the issue of substantial expansion which was not there before him. The issue of substantial expansion has already been decided for the unit in the Tribunal orders. The same issue against the same unit cannot be raised again which is against the principle of res judicata - the impugned order is liable to be set aside - Appeal allowed.
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