TMI Blog2017 (11) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... d the issue which was not before the adjudicating authority as there is no dispute with regard to amortisation of the tool cost - Appeal allowed - decided in favor of appellant. - E/2387/2011 - Final Order No. 22343/2017 - Dated:- 27-9-2017 - Shri S.S Garg, Judicial Member Shri M.S. Srinivasa, Advocate For the Appellant Shri Madhupsharan, Asst. Commissioner(AR) For the Respondent ORDER The present appeal is directed against the impugned order dt. 28/04/2011 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has allowed the appeal of the Department and set aside the Order-in-Original passed by the Deputy Commissioner. 2. Briefly the facts of the present case are that the appellants are engaged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal dt. 07/09/2009 sanctioned the refund of ₹ 1,73,040/-. Aggrieved by the same, Department filed appeal before the Commissioner and the Commissioner vide the impugned order dt. 28/04/2011 has allowed the Departments appeal and set aside the Order-in-Original. Hence the present appeal. 3. Heard both the parties and perused records. 4. Learned counsel for the appellant submits that the impugned order is not sustainable in law as the same has been passed mechanically without even appreciating facts and circumstances of the case and by grossly misconstruing the issue involved in the case. He further submitted that the Commissioner has failed to appreciate that the appellant amortised tool cost of ₹ 12 lakhs @ ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Carrier Aircon Ltd. [2005(184) ELT 113 (SC)] wherein the Supreme Court has observed as under:-- Revision/Review - Power of Commissioner of Central Excise to revision/review under Section 35E(2) of Central Excise Act, 1944 - Tribunal held that Commissioner of Central Excise could not have passed order upon points not arising out of the decision or order of the subordinate adjudicating authority and could not have relied on new material - Principle of law as enunciated by Tribunal is correct. 5. On the other hand, the learned AR reiterated the findings of the impugned order. 6. After considering the submission of both the parties, I find that the original authority while holding that the assessee is eligible for refund of S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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