2006 (3) TMI 423 - AT - Central Excise

Summary

Issues:
Challenge to order of Commissioner (Appeals) regarding interest claim under Section 11BB of Central Excise Act, 1944.

Analysis:
The appellant challenged the order made by the Commissioner (Appeals) on 7-6-2004, contending that the Appellate Commissioner should have considered their claim for interest as per Section 11BB of the Central Excise Act, 1944. The refund claim of Rs. 1,77,867/- was made by the appellant on 21-8-2003 based on the order of the Commissioner (Appeals) allowing the refund claim with consequential relief. The appellant requested payment of the refund amount along with interest as per Section 11BB, calculated at 15%. The Assistant Commissioner sanctioned the refund claim of Rs. 1,77,867/- under Section 11B of the Act but did not address the claim for interest. The appellant then appealed to the Commissioner against the Assistant Commissioner's decision for not considering the interest claim under Section 11BB.

The Appellate Commissioner held that since the Assistant Commissioner's order was silent on the issue of interest and no decision was made regarding it, the appeal was not maintainable under Section 35 of the Act. The Appellate Commissioner rejected the appeal, instructing the appellant to approach the original authority for a decision on interest under Section 11BB. However, the appellant argued that there was a clear prayer for interest under Section 11BB in their application dated 21-8-2003, and the Assistant Commissioner's failure to consider this claim amounted to a jurisdictional flaw. The Assistant Commissioner was required to consider and decide on the interest claim, and his failure to do so rendered his order flawed and appealable under Section 35B.

The Commissioner (Appeals) has the authority to pass orders confirming, modifying, or referring cases back to the adjudicating authority as per Section 35A(3) of the Act. The non-consideration of the interest claim by the Assistant Commissioner made the order appealable, as the appellant was aggrieved by this omission. The Appellate Commissioner's decision that the appeal did not lie under Section 35 was set aside, and the appeal was directed to be restored to the file of the Commissioner (Appeals) for a fresh decision in accordance with the law and the judgment provided.

In conclusion, the judgment highlighted the importance of considering all claims made by the appellant, especially regarding interest under Section 11BB of the Central Excise Act, 1944. Failure to address such claims can render an order flawed and appealable, allowing the appellant to challenge the decision and seek appropriate consideration of their claims.