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TMI Blog2007 (12) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Order-in-Appeal No. KPS/190/BVI/97, dt. 20-3-98 and KPS/28/BV/97, dt. 16-2-1998. Revenue was granted time to produce stay order or an appeal if any, filed against these two orders before the Tribunal when the matter was called out last time. Revenue has not produced any documents to indicate these two orders were under challenge. In the absence of any appeal against these two orders, which allowed the appeal of the assessee against the denial of Modvat credit, the refund that arises as a consequential relief cannot be challenged. 5. Accordingly, in view of the facts and circumstances of the case, the appeal filed by the Revenue against the current impugned orders are devoid of merits and are liable to be set aside and I do so. App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartmental appeal against O-I-A No. KPS/190/BVI/97, dt. 20-3-98 in respect of M/s. Vikas Testing & Development Labs has been upheld, and the said O-I-A being set aside, the Order-in Appeal No. RJB/M-II/38-39/2002, dated 16-4-2002 (in respect of M/s. Vikas Testing & Development Labs) passed by the Commissioner (Appeals) disallowing departmental appeal challenging the order of the Asstt. Commissioner 'granting refund, is not legal and needed to be set aside. (e) The CESTAT while passing the above said impugned order did not take into account its earlier order No. C-I/837-38/03-WZB, dated 27-3- 2003 which appears to be an error apparent on the records of its impugned order No. A/838-839/07/C-IV/SMB, dated 28-5-2007 and the same needs to be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is an error apparent on the face of the record. As such, I find that there is no error apparent on the face of the order. Accordingly, the application for rectification of mistake filed by the revenue is dismissed. 6. At the same time, it would be, too naive, not to accept the fact, that, the terra firma on which our earlier order dated 28-5-2007 was passed, no longer exists. If there is a successful challenge to the earlier for orders of Commissioner (Appeals), there is a successful challenge. Substantial justice should not be denied on technicality. As such in the interest of justice, as the order dated 28-5-2007 of the Tribunal is passed on facts, which are erroneous, is recalled and the appeal is restored to its original number. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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