2016 (1) TMI 1378 - AT - Central Excise

Refund claim - refund rejected on that ground alone for the reason that the basic issue whether the appellant was entitled for notification 108/95 dated 28.08.1995 was pending in the show-cause notice dated 03.11.2004 answerable to the Commissioner (Adjudication), Central excise, New Delhi - Held that - The ld. Commissioner has not decided the refund on the merit of the case as the merit of the case was pending in the show-cause notice dated 03.11.2004 before Commissioner (Adjudication), New Delhi. Now the show-cause notice dated 03.11.2004 has been adjudicated by Commissioner (Adjudication) vide order dated 28.02.2012. Therefore, the ld. Commissioner (Appeals) needs to reconsider the matter of refund afresh - appeal allowed by way of remand.

Summary

Issues:
1. Premature refund claim due to pending show-cause notice on entitlement for notification 108/95.
2. Adjudication of show-cause notice by Commissioner, Central Excise, New Delhi.
3. Reconsideration of refund by Commissioner (Appeals) post adjudication.
4. Remand of the matter for fresh order by Commissioner (Appeals).

Analysis:
The appeal in question challenges the Order-in-Appeal No. PI/501/05 dated 30.12.2005 passed by the Commissioner of Central Excise (Appeals), Pune I. The Commissioner held the refund claim as premature, citing the pending issue of the appellant's entitlement to notification 108/95 in a show-cause notice dated 03.11.2004, answerable to the Commissioner (Adjudication), Central Excise, New Delhi. The appellant contended that the show-cause notice was adjudicated by the Commissioner, Central Excise (Adjudication), New Delhi through Order-in-Original no. 57-110/CE/PKJ/CCE/ADJ/2012, resulting in the proceedings being dropped, thus justifying the refund claim.

Upon careful consideration, the Member (Judicial) noted that the refund was not decided on its merits by the ld. Commissioner, as the main issue was still pending in the show-cause notice dated 03.11.2004 before the Commissioner (Adjudication), New Delhi. With the show-cause notice now being adjudicated by the Commissioner (Adjudication) through an order dated 28.02.2012, it was deemed necessary for the ld. Commissioner (Appeals) to reevaluate the refund matter afresh.

Consequently, the matter was remanded back to the Commissioner (Appeals) for a fresh order, taking into account the adjudication order dated 28.02.2012 in the appellant's case. The appeal was allowed through remand to the Commissioner (Appeals) for further proceedings and a new decision to be made in light of the recent adjudication order.