2010 (2) TMI 628 - AT - Central Excise

Refund - Commissioner (Appeals) without considering the issue raised in the appeal disposed of the same by merely referring to the order of the Joint Secretary, Government of India and that of the Hon ble High Court - order nowhere discloses how the order passed by the Hon ble High Court in a totally different proceedings could have its effect upon the proceedings - without going into other issues which are sought to be raised in the matter, the impugned orders are liable to be set aside and matters remanded to the Commissioner (Appeals) to decide the same in accordance with provisions of law

Summary

Issues Involved:
Appeal against order for refund of amount sanctioned as rebate, appropriation of amount due to the Department against the rebate sanctioned, validity of order passed by Commissioner (Appeals), effect of High Court's order on proceedings, jurisdiction of lower Appellate Authority, necessity of considering issues on merits.

Analysis:
The appeal before the Appellate Tribunal concerned the order passed by the Commissioner (Appeals) directing the refund of the amount sanctioned as rebate, which was contested by the Revenue. The Revenue argued that the order of appropriation of the amount due to the Department against the rebate sanctioned was done before the disposal of appeals filed by the assessee, and there was no stay in operation to the order of the adjudicating authority. The Revenue contended that the Commissioner (Appeals) erred in allowing the appeal without considering the merits and without the issue of rebate being before him for adjudication.

On the other hand, the respondents justified the impugned order by referring to previous decisions and argued that the authorities could not have proceeded to execute the order regarding the confirmation of demand while the appeal against it was pending. They claimed that the order of the High Court was applicable to the matter at hand. The Tribunal noted that there was an order confirming the demand against the respondents, subject to challenge through an appeal. During the pendency of the appeal, proceedings for rebate claim were also ongoing, and the amount confirmed against the respondents was sought to be adjusted against the rebate.

The Tribunal emphasized that in cases of appropriation, effect is usually given through book entries, and there are no separate execution proceedings. While the authorities are advised to wait for the Appellate Authority's decision for finality, they may proceed with execution in certain cases. The Tribunal found that in this case, in the absence of a stay, the authorities did not exceed their jurisdiction by deciding the rebate claim and appropriation simultaneously. The Commissioner (Appeals) was criticized for not considering the issue raised in the appeal and for not analyzing the impact of the High Court's order on the proceedings.

Ultimately, the Tribunal set aside the impugned orders and remanded the matters to the Commissioner (Appeals) for a decision in accordance with the law. It was clarified that the orders passed by the lower authority would be subject to the final outcome of the Commissioner (Appeals) decision. The Tribunal stressed the importance of deciding issues on merits and following the provisions of the law in such cases.