2011 (5) TMI 738 - AT - Central Excise

Rectification of mistake - Revenue could not produce any evidence to show that the said order of the Tribunal has been stayed or modified by the appellate forum Held that - order of the Tribunal does not stand interfered by the Hon ble High Court, as the earlier order of the Tribunal remanded the matter and in remand proceedings Commissioner (Appeals) has allowed the refund, which stands accepted by the Revenue, the present ROM application is not called for. The same is accordingly, rejected

Summary

Issues:
1. Rectification of mistake application filed by Revenue.
2. Rejection of Revenue's appeal against Commissioner (Appeals) order.
3. Contention regarding filing of appeal before High Court.
4. Acceptance of Commissioner (Appeals) order by the department.

Analysis:
1. The case involved a rectification of mistake (ROM) application filed by the Revenue concerning the rejection of their appeal against the order of the Commissioner (Appeals). The Tribunal had previously rejected the Revenue's appeal citing a prior decision in favor of the respondents in a similar case and the lack of evidence showing any modification or stay of the Tribunal's order.

2. In response to the ROM application, the Revenue contended that they had indeed filed an appeal before the High Court of Gujarat, contradicting the Tribunal's observations. The respondents, on the other hand, submitted written statements acknowledging the filing of a tax appeal against the Tribunal's earlier order, which was subsequently dismissed by the High Court. The matter was remanded, and the Commissioner (Appeals) granted a refund, which was accepted by the department.

3. The Tribunal agreed with the respondents, emphasizing that the issue had already been decided and accepted by the department following the remand proceedings and the refund granted by the Commissioner (Appeals). Since the Tribunal's earlier order had not been interfered with by the High Court and the department had accepted the decision, the ROM application by the Revenue was deemed unnecessary and was consequently rejected.

4. The judgment was pronounced on 3-5-2011 by the members of the Tribunal, Ms. Archana Wadhwa, and Dr. P. Babu. The decision highlighted the importance of the prior legal proceedings, the acceptance of the Commissioner (Appeals) order, and the lack of grounds for the ROM application based on the established facts of the case.