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TMI Blog2023 (8) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... cted by the order of the Commissioner (Appeals) which has acquired finality. He has taken all the necessary precautions before granting the refund, by making necessary enquiries with the review branch of Commissionerate and getting the refund pre-audited. It is a settled law that once an order has not been challenged before appropriate authority it cannot be reopened and challenged in collateral proceedings subsequently by the same authority. There are no merits in the impugned order and the same is set aside - appeal allowed. - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Atul Gupta, Advocate for the Appellant Shri Santosh Kumar, Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Appeal No.NOI-EXCUS-001-APP-302-20-21 dated 07/07/2020 passed by Commissioner (Appeals) Central Goods Services Tax, Noida. By the impugned order following has been held: 19. The payment of interest on the duty deposited by the respondent shall arise only after expiry of 03 months from 30.07.2018, and any interest paid before such date shall be liable to be recovered from the respondent. 20. The interest paid to the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the refund of Rs.16,01,171/- (deposited towards 25% of penalty imposed) is allowed alongwith tile applicable interest from the date of deposit. The appellant is also allowed interest on the amount of refunds of Rs.86,65,862/- already sanctioned vide impugned order, from the date (s) of deposit of said amount till the date of payment. 2.6 In pursuance of the order in appeal dated 27.06.2019, Assistant Commissioner vide his order in original dated 01.10.2019 allowed the refund of the amounts after enquiring from the Assistant Commissioner (Review) Central GST Commissionerate Noida about the review status of the order dated 27.06.2019. In para 17 of his order Assistant Commissioner has recorded: 17. However, a letter even C No 1067 dated 08.08.2019 to the Assistant Commissioner (Review) Central GST Commissionerate Noida was asking him for current review status of the Order-in-Appeal No.NOI-EXCUS-001-APP-477-19-20 dated 27.06.2019. In para 19 he further records as follows: 19. The instant Refund claim was sent for pre-audit to the Assistant Commissioner (Audit), CGST Commissionerate Noida vide this office letter C No V (18) Ref/Reb/Pre Post Audit/ HPR/212/2017/11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arguing for the appellant learned Counsel submits that the order dated 01/10/2019 was passed by the Original Authority in compliance with the order of the Appellate Authority which had acquired finality as no appeal was filed by the Revenue against the said order. As this order has not been set aside by any authority the subsequent order passed by the Commissioner (Appeals) in the appeal filed by revenue before him cannot be justified holding the contrary view. Accordingly, he prays that this order may be set aside. 3.3 Learned Authorized Representative appearing for revenue reiterates the findings recording in the impugned order. 4.1 I have considered the impugned order along with the submissions made in the appeal and during the course of arguments. 4.2 The facts as stated above are not in dispute. Both the parties agreed that the Order-in-Appeal dated 27/06/2019 passed by the Commissioner (Appeals) was not appealed against, when no appeal by revenue, this order has become final even if the said order was erroneous or that view was possible in the matter. It is settled law that the Assistant Commissioner was bound by the order of the higher Appellate Authority and if he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of Tribunal had attained finality, the petitioner cannot claim any relief. 4.6 In case of Flock (India) Pvt Ltd. [2000 (120) E.L.T. 285 (S.C.)], Hon ble Supreme Court has observed as follows: 7 . Section 35 of the Act provides regarding appeals to Collector (Appeals). In sub-section (1) thereof it is laid down that any person aggrieved by any decision or order under the Act by a Central Excise officer lower in rank than a Collector of Central Excise may appeal to the Collector (Appeals) within 3 months from the date of communication to him of such decision or order. In the proviso to sub-section (1) the power is vested in Collector (Appeals) to extend the period by further three months if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal aforesaid within the period of three months prescribed under sub-section. Section 35-A lays down the procedure to be followed in disposal of the appeal. In sub-section (3) thereof it is provided that the Collector (Appeals) may after making such further inquiry as may be necessary pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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