TMI Blog2017 (2) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... And Mr. Ashok K. Arya, Member (Technical) Sh. Himanshu Khemuka, Ld. Advocate for the appellant Sh. Yogesh Agarwal, Ld. AR for the respondent Per Ashok K. Arya: 1. The appellant, M/s Bharat Sanchar Nigam Ltd., Telecom Factory Bhilai is in appeal against Order-in-Appeal order No. 57/CE/2008 dated 15/12/2008 passed by Commissioner (Appeals), whereunder Order-in-Original dated 11/06/2008 passed by the Deputy Commissioner rejecting the refund claim of the appellant has been sustained. 2. Briefly the facts are as under: i. The appellant had filed a refund claim for ₹ 62,52,413/representing the duty of excise paid by the appellant, BSNL, on the value which was calculated at the rate of 10% of the cost of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrying on job work and not assigning the job to any other person; who can give profit from such activity and no business was carried on by the Electricity Board after manufacturing the electricity poles, and selling them out or dealing out with any other person, thereby enhancement of assessable value, by adding 10% profit not sustainable. iii. The appellant is claiming here the amount of Duty of Excise ₹ 64,52,413/- which was paid during December 2005 to April 2007 on that part of the value which was calculated at the rate of 15%or 10% (as applicable during relevant time) of the cost of production or manufacture of subject goods was not required to be paid by them, and the appellant requested to refund the said Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arefully considered the facts of the case, the submissions of both the sides and the case laws cited. 7. It may be mentioned that the Hon'ble Supreme Court in the case of PCC Pole Factory (supra), (whose subject item was PCC poles) observes that- .. The appellant having lost before the authorities, carried the matter to the Tribunal. The Tribunal upheld the orders made by the authorities and took the view that PCC poles are marketable and where the work is done by job work, there may be some margin of profit in such activity forgetting the fact that in the present case Electricity Board itself was carrying on that hob and has not assigned the job to any other person who can gain such profit and no business was carried on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the clear finding by the Commissioner (Appeals) regarding protest made by the respondent for allowing refund from 01.02.2001 which is not factually rebutted by the Revenue, we find no reason to interfere with the above finding. The Revenue seeks to apply the procedure under Rule 233B for all the period in dispute which s quite contrary to the legal provisions applicable. The 1944 Rule was superseded in 2001. Further, the impugned order's records existence of protest by the respondent. As such, we find no reason to interfere with the findings recorded in the impugned order and accordingly the appeal is rejected. 10. In the light of well settled legal position (supra), we find no reason to sustain the impugned order and the same is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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