TMI Blog2010 (9) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent shall be free to resort to the provisions of the Act relating to the recovery, since refund has already been granted to the appellant. - Central Excise Appeal No. 81 of 2004, - - - Dated:- 27-9-2010 - V.C. Daga and R.M. Savant, JJ. S/Shri S.N. Kantawala with Brijesh Pathak, i/b. Yogesh M. Rohira, for the Appellant. Shri R.B. Pardeshi, for the Respondent. [Judgment per : V.C. Daga, J.]. Heard. Perused appeal. 2. This is an appeal filed under Section 35G of the Central Excise Act, 1944 ( the said Act for short) against the impugned order dated 27th February, 2004 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Regional Bench, Mumbai ( the Tribunal for short) raising following substantial questions of law : (a) Whether the appellant could be denied the refund on the extended length of galleries despite the judgment of the Supreme Court in the case of Commissioner of Central Excise, Jaipur-II v. S.P.B.L. Ltd. (Civil Appeal No. 4972 of 2001 decided on 17th September, 2002) ? (b) Whether the appellant could be denied refund when the order dated 1st July, 1999 determining the capacity on the basis of goods which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeal), Central Excise, Mumbai who vide its order-in-appeal dated 8th February, 2002 alowed appeal. Acting upon this order-in-appeal, the Deputy Commissioner Central Excise, Belapure-1 Dn. Mumbai-VI sanctioned refund claim vide its order dated 28th October, 2002 since there was no stay in the appeal filed by the Revenue which was pending before the Tribunal. Ultimately, thus appeal was allowed by the Tribunal and the order of the 1st appellate authority granting refund was set aside by an order passed by the Tribunal on 19th February, 2004. 7. Being aggrieved by the above order, this appeal has been preferred to challenge the order refusing to grant refund on the grounds mentioned in the impugned order. Rival submissions : 8. Mr. Kantawala, submitted that the order dated 1st July, 1999 was not a final order since it was a conditional order. On the repeated representations being made by the appellant, they were informed that their case was kept alive, since the Board had decided to file an appeal before the Hon ble Supreme Court. It is, thus, urged that the Department had agreed that the re-determination would be subject to the decision of the Apex Court. Thus, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thus the cases were to be kept alive till the decision of the case. The above letter dated 19th September 2001 was in response to the letter dated 20-8-01 (Page 43) of the appellant to expedite the matter of re-determination in accordance with the settled law as per the decision of the larger bench of the Tribunal. It is submitted that once the appellant was informed that the issue was kept alive as per the aforesaid letter, the order dated 28th February, 2002 rejecting the refund claim holding that the Final order No. 2/98 dated 1st July, 1999 has become final and conclusive since it was not set aside is patently bad in law. It is submitted that it was not open to the Department on the one hand to state that the issue of re-determination was subject to the outcome of the proposed Appeal against the order of the Larger Bench of the Tribunal in the case of M/s. Sangam Processors Bhilwara Ltd. v. CCE, Jaipur - 2001 (42) RLT 429 (CEGAT-LB) = 2001 (127) E.L.T. 679 (Tri. - LB) especially when the issue was totally settled by the Apex Court in appellants favour. 11. Mr. Kantawala further contends that the impugned order of the Tribunal is also contrary to the ratio laid down by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals after it was submitted on behalf of the appellants therein (The Union of India) that nothing survived for adjudication after omission of Section 3A from the statute book w.e.f. 11-5-2001. It is thus manifest that even in the Departmental perception no proceeding can survive in terms of Section 3A of the rules framed there under or Notification issued under the said Section after Section 3A had been omitted w.e.f. 11-5-2001. It is, thus, submitted that in view of the judgment in Beauty Dyers, there could be no basis for recovering the refund granted to the appellant; especially when the order dated 28th October, 2002 sanctioning the refund has not been assailed by the Revenue. 13. Mr. Kantawala also submits that the Tribunal has failed to consider various submissions in support of O-I-A No. KKS (93) 93/M-VI/02) made in the rejoinder before the Tribunal on 22nd October, 2002. The appellant had, inter alia, contended that the duty on the galleries was paid by the appellant under protest and in addition, they also gave letters dated 8th September, 1999, 25th May, 2000 20th August, 2001 intimating that the duty on the galleries was paid by them under protest and in addition to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no stay was granted by the Apex Court. Under this circumstance, the Commissioner of Central Excise while determining the annual capacity of the petitioner s unit though passed an order dated 28th June, 1999 styling it as final order but with the following rider : It may be noted that this determination has been made on the basis of the existing parameters. In case there is any change in any relevant parameters, M/s. Mahalakshmi Dying and Printing Works are required to follow the provisions of the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998 and the duty liability would be subject to redetermination . Subsequent to the above order, a circular was issued by the Central Board of Excise and Customs dated 22nd February, 2001 directing not to hold up the refund proposal. Pursuant to that, it appears that the petitioner was granted refund in the sum of Rs. 9,05,559/- under the provisions of Section 11B of the Central Excise Rules. However, this order was not acted upon by the Revenue. Consequently, aggrieved thereby, appellant herein had filed Writ Petition No. 225 of 2005 seeking directions against Revenue in the matter of payment of refun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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