TMI Blog2023 (3) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... n and excisibilty of used refractories which was not a Ground before him. Further, this issue was already decided by his predecessor on which no Appeal was filed by the Department. It is seen that the Tribunal in the case of CCE, Mumbai-V, Vs. Pam Pharmaceuticals and Allied Machinery Company Pvt. Ltd.- 2017-TIOL- 1595-CESTAT-MUM has held that Law is well settled that the Appellate Authority is not expected to create jurisdiction for himself to decide the controversy which was not before him. Therefore to the extent learned Commissioner s view is contrary to the direction of the Tribunal, that calls for set aside. The Commissioner (Appeals) has traversed beyond the Grounds taken by the Department. The OIA is dismissed on the ground o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals) after going through the submissions and statutory provisions, set aside the OIO and allowed the Appeal. It is on record that this OIA was reviewed by the committee of Commissioners and a decision was taken for not filing an Appeal against the OIA. Consequently, the Assistant Commissioner vide OIO No. 01/Refund/Kly/2012-13 dated 20/06/2012 granted the refund. Aggrieved by this OIO, the Department filed an Appeal before Commissioner (Appeals) on the following grounds:- The Order-in-Original passed by the Adjudicating Authority does not appear to be proper and appropriate on the following grounds:- (i) As it is fact that the said assesse have already paid Central Excise duty on Waste of Refractory Bricks a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacturer shall pay an amount equal to the duty leviable on transaction value. Carefully going through the above rule, it becomes very clear that it has been laid down for the capital goods which are cleared as waste and scrap and it is thus applicable to all the scraps of capital goods. I find no logic in the argument of the respondent that the disputed goods are outside the purview of Central Excise Tariff Act, 1985 [CETA 85] and hence, no duty is leviable in terms of the Section 3 of the Act. I find that the wordings of rule 3(5A) of CCR 04 as quoted above is very clear about it inasmuch as these envisage payment of an amount equal to the duty leviable and not payment of the duty itself. As a person clearing crap of capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Ltd. Vs. Commr. of Service Tax, Mumbai-2011 (24) S. T. R. 212 (Tri.-Mumbai). 7. Heard both sides. 8. As per the grounds of Appeal, the issue before the Commissioner (Appeals) was that of unjust enrichment. From the OIA passed by the Commissioner (Appeals), it is seen that he has not even addressed this issue raised by the Department in their Grounds of Appeal . There are no findings as to why or why not the unjust enrichment clause is invokable in the present case. He has gone into the classification and excisibilty of used refractories which was not a Ground before him. Further, this issue was already decided by his predecessor on which no Appeal was filed by the Department. 9. It is seen that the Tribunal in the case of CCE, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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