2010 (4) TMI 626 - AT - Central Excise

Miscellaneous Application seeking implementation are dismissed - orders of the original authority and the Commissioner (Appeals) relating to the Tribunal s order dated 27-3-2002 is in their favour on unjust enrichment angle - Tribunal has clearly noted that an appealable order has already been passed - Held that - no explanation was forthcoming as to why the applicant did not prefer an appeal before the Commissioner (Appeals). No explanation is forthcoming as to why they should take two years to file another application for implementation of the order dated 27-3-2002 even after their earlier Miscellaneous Application for implementation of the same has been dismissed by Misc. Order dated 7-9-07.

Summary

Issues:
1. Implementation of Tribunal's order dated 27-3-2002 for refund claim.
2. Consideration of unjust enrichment aspect in the refund claim.
3. Applicability of Rule 41 of CESTAT (Procedure) Rules.

Analysis:
1. The case involves a Miscellaneous Application seeking implementation of the Tribunal's order dated 27-3-2002 for a refund claim. The Tribunal had remanded the matter to the adjudicating authority with specific directions regarding the refund claim, including differentiating between excisable and non-excisable items in the claim. The original authority had rejected the refund claim earlier, which led to subsequent appeals and remand orders.

2. The issue of unjust enrichment in the refund claim was raised by both parties. The Tribunal's order did not explicitly address this aspect, leading to a dispute between the applicant and the Jt. CDR. The Jt. CDR argued that the original authority correctly considered the unjust enrichment aspect while passing the order, and if the applicant disagreed, they should have appealed to the Commissioner (Appeals) instead of filing another application for implementation.

3. The Tribunal considered the applicability of Rule 41 of CESTAT (Procedure) Rules, which allows for orders or directions to prevent abuse of procedure or secure justice. However, the Tribunal found no justification to invoke this rule in the present case. The Tribunal noted the lack of wilful disobedience by the lower authorities and emphasized the need for the applicant to follow the prescribed appeal process rather than seeking intervention through Rule 41.

In conclusion, the Tribunal rejected the application for implementation of the order dated 27-3-2002, highlighting the importance of following the legal appeal process and addressing issues like unjust enrichment through proper channels rather than bypassing the Commissioner (Appeals).