2013 (6) TMI 363 - AT - Central Excise

Recovery of erroneous refund - Held that - the main contention of the learned counsel is that the Commissioner (Appeals) passed the order without considering the order of the Tribunal. In this context, the learned AR submits that the departmental appeal before the Hon ble High Court is still pending and the show-cause notice was kept in call book and therefore the adjudication order should not have been passed, which has no serious objection on the part of the appellant. - demand set aside - matter remanded to original authority.

Summary

Issues Involved:
1. Erroneous refund granted in violation of limitation and unjust enrichment.
2. Adjudication order passed by Commissioner (Appeals) without considering Tribunal's order and pendency of departmental appeal before High Court.

Analysis:
1. The appeal before the Appellate Tribunal CESTAT CHENNAI involved the issue of an erroneous refund of Rs.9,57,895 granted, allegedly in violation of limitation and unjust enrichment. The Tribunal noted that a show-cause notice was issued for the said refund, which was challenged by the Revenue. The Tribunal had earlier held that the refund was within the period of limitation. However, the Revenue appealed to the Hon'ble Madras High Court against the Tribunal's order, which was still pending. The Commissioner (Appeals) set aside the adjudication order and allowed the departmental appeal, citing that the adjudicating authority had decided the case prematurely without considering the pendency of the Revenue's appeal before the High Court.

2. The main contention raised during the hearing was that the Commissioner (Appeals) had passed the order without duly considering the Tribunal's order and the pendency of the departmental appeal before the High Court. The learned counsel argued that the show-cause notice was kept in a call book category due to the pending appeal, and thus, the adjudication order should not have been passed. Considering the submissions from both sides, the Tribunal found it appropriate to set aside both orders and remand the matter to the original authority for a fresh decision in accordance with the law. Consequently, the appeal was allowed by way of remand to the original authority, and the stay application was also disposed of.

This comprehensive analysis of the judgment highlights the key issues involved, the Tribunal's findings, the arguments presented by both parties, and the final decision to remand the matter for fresh adjudication in light of the pending departmental appeal before the High Court.