TMI Blog2018 (5) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.2004 has categorically directed the Assistant Commissioner to finalize the assessment De novo after considering the assessments in respect of all brands which were provisional in nature - Further, the Revenue has not filed any appeal against the order passed by Commissioner (Appeals) dated 19.08.2004 and the said order has become final. Therefore, in De novo proceedings the Assistant Commissioner cannot carve out a new ground for rejection of the refund. Appeal allowed - decided in favor of appellant. - E/21690/2017-SM - Final Order No. 20440/2018 - Dated:- 19-1-2018 - Mr. SS Garg, Judicial Member Mr. S.K. Venugopala Rao, CA - For the Appellant Mr. Madhupsharan, Assistant Commissioner (AR) - For the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Five only), The Revenue vide Order-in-Original dated 28.08.1998 and Order dated 04.09.1998 have rejected the refund application by stating that in respect of Geep brand, the assessments were not under provisional basis and only in respect of Eveready brand the provisional assessment was allowed. Consequently the appellant made the differential duty of ₹ 1,03,438/- (Rupees One Lakh Three Thousand Four Hundred and Thirty Eight only) which was paid under protest. Aggrieved by the said order, the appellant filed appeal before the Commissioner and the Commissioner (Appeals) vide Order-in-Appeal No. 608/2000 dated 07.12.2000 has allowed the appeal and sent back the file for De novo adjudication by following the provisional assessment pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d appeal before the Commissioner (Appeals) who vide the impugned order has rejected the appeal. Hence the present appeal. 2. Heard both the parties and perused the records. 3. Learned consultant for the Revenue submitted that the impugned order rejecting the refund of the appellant on totally new ground is not sustainable in law and is contrary to the direction of the Tribunal vide Order dated 20.05.2004. He further submitted that the impugned order is also contrary to the order passed by the Commissioner (Appeals) earlier vide his order dated 342/2004 CE dated 23.08.2004. He further submitted that the contention of the Revenue that the appellants were not eligible for provisional assessment with regard to Geep brand and such faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment is for all the brands of electric dry cell batteries. I also find that subsequently the Commissioner (Appeals) vide his order dated 19.08.2004 has categorically directed the Assistant Commissioner to finalize the assessment De novo after considering the assessment sin respect of all brands which were provisional in nature. Further I find that the Revenue has not filed any appeal against the order passed by Commissioner (Appeals) dated 19.08.2004 and the said order has become final. Therefore, in De novo proceedings the Assistant Commissioner cannot carve out a new ground for rejection of the refund. Consequently I find that the impugned order which only upheld the Order-in-Original on entirely new ground is not sustainable in law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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