2009 (1) TMI 679 - AT - Central Excise

Summary

Issues involved: The issue involved in the instant appeal is whether the refund sanctioned was on account of payment of duty and penalty or on account of pre-deposit made u/s 35F of the Central Excise Act, 1944.

Summary:

Issue 1: Refund on account of duty and penalty or pre-deposit

The Respondents filed an appeal against the Order-in-Original dated 31-12-1999 with a stay application for recovery of duty and penalty. The Commissioner (Appeals) rejected the appeal, leading to the dismissal of the appeal by the Commissioner (Appeals) Bhopal. The Respondents then appealed to CEGAT, WZB, Mumbai for waiver of pre-deposit. Subsequently, the Respondents deposited the duty amount and paid the penalty. CEGAT waived the pre-deposit and remanded the case back to the Commissioner (Appeals). The Commissioner (Appeals) set aside the original order, and the Revenue did not appeal against it. The Assistant Commissioner observed that the refund claim was filed within the prescribed time limit without unjust enrichment. The Orders-in-Original and -Appeal confirmed the refund, considering the previous legal proceedings and decisions.

Issue 2: Stand of the Revenue

The stand of the Revenue became untenable after the Commissioner (Appeals) decided the issue on merits in favor of the Respondents, setting aside the original demand of duty and penalty. This decision was not appealed against. Consequently, the impugned Order-in-Appeal was upheld, and the Revenue's appeal was dismissed.

In conclusion, the Appellate Tribunal upheld the Commissioner (Appeals)'s decision regarding the refund, considering the legal proceedings and decisions made throughout the case.