TMI Blog2015 (11) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... llant initially filed the rebate claim for ₹ 5,82,202/- but subsequently, before sanctioning the same, restricted the claim to ₹ 4,65,761 - Since the Appellant paid duty @10% BED instead of effective rate of 8% BED, the difference amount is not part of the rebate, that s why Appellant filed a separate claim for that and the Assistant Commissioner sanctioned the refund of the same by way of cenvat credit and not by way of cash for the reason that the said difference amount of ₹ 1,16,441/- is not treated as rebate but excess payment, therefore the same was sanctioned as refund of excess payment of duty. - Appellant was not required to file appeal against the order dated 24.06.2009 and they rightly filed a separate refund - T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of ₹ 1,16,441/- which was sanctioned by the Assistant Commissioner vide Order-in-Original No.R-1041/09-10 dated 7.12.09. Aggrieved by this Order dated 7.12.09 the Revenue filed an appeal before the Commissioner (Appeals) on the ground that rebate application of the Appellant for the whole amount of ₹ 5,82,202/- was disposed of by the Assistant Commissioner by sanctioning the part amount of rebate and if at all there is any grievance of the Appellant it is that Order dated 24.06.2009 against which appeal should have been filed. Since the said order-in-original No.R-263/09-10 dated 24.06.2009 was not challenged, the same attained finality, therefore the subsequent Order No.R-1040/09-10 dated 7.12.2009 passed by the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - was sanctioned. In this position, there was no occasion available to the Appellant to file any appeal by challenging the order dated 24.06.2009. Therefore, the contention of the Revenue that the order dated 24.06.2009 should have been appealed against, is absolutely wrong and on that ground setting aside the Order-in-Original dated 07.12.2009 is not correct and consequently the impugned order is not sustainable. 4. On the other hand Shri N.N. Prabhudesai, Ld. Superintendent (AR) appearing for Revenue, reiterates the findings of the impugned order. 5. I have carefully considered the submissions made by both the sides. 6. The Ld. Commissioner (Appeals) set aside the Order-in-Original dated 7.12.09 on the ground that since the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 202/- but subsequently, before sanctioning the same, restricted the claim to ₹ 4,65,761/-. In other words the claim of the Appellant was for ₹ 4,65,761/- and not for ₹ 5,82,202/-. Therefore the Assistant Commissioner passed order for sanction of rebate only for the amount i.e. ₹ 4,65,761/- what was claimed by the Appellant and in the first order dated 24.06.2009 no order was passed in respect of the amount of ₹ 1,16,441/- as the same stood withdrawn by the Appellant. In regard to the amount of ₹ 1,16,441/- the Assistant Commissioner in his order dated 24.06.2009 given finding as reproduced below: I find that the claimant vide letter dated 28.05.09 have submitted they have paid duty @10% BED but as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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