TMI Blog2011 (1) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner (Appeals) is not maintainable, following the decision of Maza Cosmetics (2006 (8) TMI 65 - HIGH COURT , DELHI) and Silver Streak Welding Products India Pvt Ltd., (2007 (9) TMI 222 - HIGH COURT BOMBAY). Regarding denial of refund claim - the refund claim has been denied on the presumption that the buyer might have taken credit - Held that:- In this case the credit is not available to the buyers on capital goods and if any of the buyer has taken credit of this capital goods, then the liability to recover the amount wrongly availed credit is of the buyers and not of the supplier - in this case, the verification has not been done by the adjudicating authority properly and they have done only on random basis - Decided in favor of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame was reduced to Rs.43,45,739/-. The refund claim was rejected. The appellant preferred an appeal before the Commissioner (Appeals), who remanded back the case for denovo adjudication with the guideline that the reappraisal of the documentary evidence produced by the appellants can be done only through inquiry and verification with source and destination by the authorities at the original stage. Thereafter, the refund claim of Rs.38,06,579/- was sanctioned out of Rs.43,45,789/-. The appellant preferred an appeal before the Commissioner (Appeals) for denial of refund claim of balance amount of Rs.5,39,160/- and the Revenue preferred an appeal against the order of sanctioning of refund claim by the adjudicating authority. The Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed their refund claim and no show-cause notice has been issued under Section 11A of the Central Excise Act, 1944 for recovery of erroneous refund made to the appellants, the appeal filed by the Revenue is not maintainable, in view of the Circular No.423/56/98-CE dated 22/09/98. He also submitted that in this case the lower appellate authority has considered that the credit may be taken by the buyers, in that event the recovery should be made from the buyers for wrong availment of credit and not to the appellants as no credit is available on capital goods. 5. On the other hand, the Ld. DR submitted that the contention of the Ld. Advocate are not acceptable because in the case of CCE, Meerut Vs. Blue Star Spinning Mills Ltd., reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such points arising out of the decision or order as may be specified by the Commissioner of Central Excise in his order. (3) xxxxxxxxxxx (4) Where in pursuance of an order under sub-section (1) or sub-section (2) the adjudicating authority or the authorised officer makes an application to the Appellate Tribunal of the Commissioner (Appeals) within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the appellate Tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts of the case of Blue Star Spinning Mills Ltd., (supra). 9. Accordingly, we hold that the appeal filed by the Revenue is not maintainable before the Commissioner (Appeals). Hence, we set aside the order of Commissioner (Appeals) allowing the appeal of the Revenue against the order of the sanctioning of refund claim of the appellants by the adjudicating authority as the said appeal is not maintainable before the Commissioner (Appeals)under Section 35E (2) of the Central Excise Act, 1944. 10. On the second issue for the denial of refund claim of Rs.5,39,160/-, we find that the refund claim has been denied on the presumption that the buyer might have taken credit. The Courts do not decide the matter on the presumption. To decide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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