2011 (2) TMI 1056 - AT - Central Excise

Refund claim denied - Unjust enrichment - Tribunal decided the appeal filed against the first Order-in-Appeal and sent the case back to the original authority for decision - Held that - Since the first O/A has been set aside by the Tribunal, the present appeal becomes infructuous, original authority is required to examine the bar of unjust enrichment, after giving the party a reasonable opportunity of being heard, appeal is disposed of

Summary

Issues involved:
1. Refund claim rejection by Asstt. Commissioner
2. Appeal allowed by Commissioner (Appeals)
3. Sanction of refund claim by Asstt. Commissioner
4. Review of Order-in-Original by Commissioner of Central Excise
5. Departmental appeal against Order-in-Original
6. Rejection of departmental appeal by Commissioner (Appeals)
7. Present appeal by Commissioner of Central Excise
8. Tribunal's decision on the first Order-in-Appeal
9. Infructuous nature of present appeal

Analysis:

1. The respondent filed a refund claim which was rejected by the Asstt. Commissioner, Central Excise, Aurangabad. Subsequently, the Commissioner (Appeals) allowed the appeal, leading to the sanctioning of the refund claim by the Asstt. Commissioner through an Order-in-Original.

2. However, the Commissioner of Central Excise, Aurangabad reviewed the Order-in-Original, prompting the department to file an appeal against it before the Commissioner (Appeals). The Commissioner (Appeals) rejected the departmental appeal, which resulted in the present appeal being filed by the Commissioner of Central Excise, Aurangabad against this decision.

3. The Tribunal had previously decided an appeal related to the first Order-in-Appeal and sent the case back to the original authority for further consideration. The respondent's counsel argued that since the first Order-in-Appeal had been set aside by the Tribunal, the present appeal had become infructuous. The ld.JDR also agreed with this view.

4. Consequently, the appeal was deemed infructuous in light of the Tribunal's previous order, requiring the original authority to re-examine the bar of unjust enrichment after providing the party with a fair opportunity to be heard. The case was disposed of accordingly.