TMI Blog2023 (7) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... cess has been initiated through the back door by issuance of a show cause notice. This is clearly against the principles of judicial discipline. In case, the protective demand was issued before the finalization of the appeal by CESTAT, it was within the permissible limits of the Department to withdraw the same. It is found that the Original Authority vide OIO No.25-35/2020 dated 21.09.2020 has rightly discharged the same - Commissioner (Appeals) cannot sit in judgment of the Tribunal s order and to hold the same to be issued per incuriam , whereas no appeal has been filed against the CESTAT Order and an appeal filed earlier on a case involving identical issue was withdrawn on monetary grounds. It is curious to note that whereas some 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars Limited, the appellants, filed a refund claim before the Assistant Commissioner for an amount of Rs.4,51,294/- for the reason that the quantity of caustic soda lye, the appellant have supplied to M/s NALCO, was less than the invoiced quantity and therefore, there was excess payment of duty. It is also not disputed that the receiver NALCO has paid the amount equivalent to the quantity of the material received by them and availed CENVAT credit only on the quantity received by them. The Assistant Commissioner has sanctioned the refund claim. The Department being aggrieved of the same filed an appeal before the Commissioner (Appeals) who rejected the Departmental appeal. On an appeal filed by the Department, CESTAT vide Final Order No.30507 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant has not paid duty to the Department and hence, he is not eligible for refund under Section 11B of Central Excise Act, 1944, is incorrect; a plain reading of the section makes it clear that a buyer who has borne the burden of duty and has not passed on the same can claim refund; Tribunal in the Final Order No.968-969/2009 dated 07.05.2009 has discussed the issue on merits also by applying the provisions of Section 11B to the facts of the case and therefore, the appellants are eligible for refund. Learned Counsel submits that Department is resorting to multiple reviews against the same cause of action, which is not permissible under law; Department is bound by the decisions of Higher Appellate Tribunal and the High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal, by way of a show cause notice on the grounds that refund granted was erroneous, where no appeal was filed against the order of the Tribunal. The Order-in-Original No.81/2013-CE (R) dated 15.07.2013 was passed by the lower authority following the Final Order No. 968- 969/2009 dated 07.05.2009 of CESTAT. The issue travelled up to the Tribunal after the appeal filed by the Department was rejected by the First Appellate Authority. CESTAT vide Final Order No. A/30507- 30512/2018 dated 17.04.2018 rejected the Department s appeal. The order was not challenged by the Department. Meanwhile, an appeal against the Final Order No.968-969/2009 dated 07.05.2009 was dismissed as withdrawn by the Hon ble High Court on the grounds of monetary l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the very same appellant covering the periods before and after the period covered in the impugned order. The Revenue contends that there is no estoppel in Revenue s matter. Maybe it so, it s not open to the Department to open up a case which attained finality. In passing an order contrary to the order of the CESTAT and holding that the CESTAT order was per incuriam , learned Commissioner (Appeals) has exceeded his brief. Moreover, in the instant case, I find that the Department has followed pick and choose method making a joke of the judicial process and putting the appellant to unwarranted hardship by refraining from appealing past and future cases and selecting only case for review. 9. I also find that the finding of the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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