TMI Blog2017 (4) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Customs, Excise Service Tax Appellate Tribunal, West Zone, Ahmedabad (hereinafter referred to as the learned tribunal ) dated 30/12/2015 in Appeal No.E/1519/2008 and the order dated 09/06/2016 passed in E/ROM/10266/2016, the assessee has preferred the present Tax Appeal with the following proposed questions of law; (A) Whether the Appellate Tribunal was justified in confirming rejection of refund in absence of any notice under Section 11A of the Central Excise Act, 1944? (B) Whether the Appellate Tribunal was justified in not considering the Chartered Accountant certificate, which certifies that no incidence of duty is passed on by the Appellant? (C) Whether the Appellate Tribunal was justified in ignoring evidences produced before them being a last fact finding authority and especially when error apparent on record was pointed out? (D) Whether the appellant was justified in summarily rejection of rectification of mistake when error apparent on record was specifically pointed out? The present Tax Appeal has a chequered history. [2.0] The facts leading to the present Tax Appeal in nutshell are as under; [2.1] The Assistant Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served that the Department had not granted refund amount and the Department should take note of paragraph 30 of the order of the Hon ble Supreme Court in the case of Union of India Vs. Solar Pesticides Ltd. reported in 2000 (116) ELT 401 and take the action accordingly. [2.3] Special Civil Application was filed by the assessee on the aspect of unjust enrichment and on other grounds and High Court set aside the order dated 23/06/2000 /05/07/2000 and the order dated 30/08/2000 /06/09/2000 passed by the learned tribunal and directed to list the Appeal for disposal and observed that the Appeal should be decided and disposed of in light of the decision of the Hon ble Supreme Court in the case of Solar Pesticides Ltd. (Supra) . Thereafter, the learned tribunal decided the Appeal and remanded the case to the Assistant Commissioner /Deputy Commissioner for determining whether the assessee had passed the burden to their customers in light of the evidence to be placed before him by the importer by order dated 14/06/2004. Thereafter, the appellant assessee filed Charted Accountant Certificate to justify that the appellant assessee had not passed on the incidence of duty. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 09/06/2016. Hence, the appellant assessee has preferred the present Appeal with the aforesaid proposed questions of law. [3.0] Shri Dhaval Shah, learned advocate appearing on behalf of the appellant assessee has vehemently submitted that in the facts and circumstances of the case, the learned tribunal has materially erred in rejecting the rectification application. [3.1] It is vehemently submitted by Shri Dhaval Shah, learned advocate appearing on behalf of the appellant assessee that in fact submissions were made with respect to the notice under Section 11A of the Act, however, while deciding the Appeal, the learned tribunal did not consider and /or dealt with the same. It is submitted that therefore when the same was pointed out to the learned tribunal by way of rectification application, again the learned tribunal has not dealt with the same. It is submitted that once the submissions were made on a particular issue and /or grounds were raised, the same was required to be dealt with by the learned tribunal. It is submitted that the norm consideration of the grounds canvased can be said to be an error apparent on record, and therefore, the learned tribunal ought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, the adjudicating authority ought to have considered the same. Making the above submissions and relying upon the above decisions, it is requested to admit /allow the present Appeal and in the alternative to remand the matter to the learned tribunal directing the learned tribunal to decide the issue with respect to the notice under Section 11A of the Act. [4.0] Heard Shri Dhaval Shah, learned advocate appearing on behalf of the appellant assessee at length. [5.0] At the outset, it is required to be noted that as such the issue is pending since 1997-98, and therefore, without remanding the matter to the learned tribunal to consider the issue with respect to the notice under Section 11A of the Act and as the entire material is available with us in the form of paper book produced by the learned advocate appearing on behalf of the appellant assessee, we have though it fit to consider the issue with respect to the notice under Section 11A of the Act by ourselves. It is the case on behalf of the appellant assessee that in case of erroeneous refund, before making any recovery, notice under Section 11A of the Act is required. However, in the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Division Bench of this Court in the case of Atul Ltd. (Supra) are concerned, for the reasons stated hereinabove, instead of remanding the matter to the learned tribunal, we ourselves have considered the issue with respect to the notice under Section 11A of the Act, which according to the appellant assessee was though canvansed but the learned tribunal did not decide the same, the aforesaid decisions shall not be applicable to the facts of the case on hand. [5.1] Now so far as the submissions on behalf of the appellant that the learned tribunal has materially erred in dismissing the Appeal and confirming the order passed by the authorities below on the ground that the appellant did not produce the certificate from the Government to the extent that while fixing the price of fertilizers the Government had taken into account the duty on methane or not, it is submitted that as such earlier the remand order passed by the learned tribunal in the year 2005 was an open remand, and therefore, the adjudicating authority was required to consider the Chartered Accountant Certificate produced by the appellant assessee, and therefore, the adjudicating authority ought to have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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