2007 (5) TMI 406 - AT - Central Excise

Summary

Issues involved: Department's appeal against the order of Commissioner (Appeals) regarding the inclusion of gallery length in fixing Annual Production Capacity (APC) and admissibility of refund.

Summary:

Issue 1: Inclusion of gallery length in fixing APC
The main issue in the case was whether the length of gallery should be included in fixing APC, which was resolved in favor of the assessee. The Commissioner had fixed the APC including the gallery length in an appealable order, but the party did not appeal against it. The party claimed refund on the basis of duty paid under protest. The original authority and Commissioner (Appeals) admitted the refund claim. The Department argued that the party should have appealed against the order instead of submitting a delayed refund claim without proving that the duty burden was not passed on to the consumer. The Tribunal held that without challenging the order fixing APC, the sanction of refund amounted to a review of the order, which was impermissible. The Tribunal applied the decision of the Supreme Court in a similar case to the present situation. The Tribunal also noted that in a compounded levy scheme, duty payment is based on annual production capacity, not individual clearances, and the burden of duty may not be reflected in individual invoices. Therefore, the Tribunal concluded that the party did not prove that the duty burden was not passed on.

Decision:
In light of the above analysis, the Tribunal found in favor of the Department and allowed the appeal accordingly.