2008 (6) TMI 45 - AT - Central Excise

Commissioner sanctioned refund in consonance with the tribunal s finding that incidence of duty has not been passed Dept. filed appeal in the HC challenging the order of the Tribunal along with stay but no interim order passed by HC held that challenge to the order of the Commissioner is totally misplaced - held that passing any order of stay will virtually amount to reviewing the previous order which is not permissible revenue s appeal dismissed along with stay application

Summary

Issues:
- Appeal against order sanctioning refund under Section 11B of the Central Excise Act.
- Challenge to the order of the Commissioner (Appeals).
- Department's appeal in the Rajasthan High Court.
- Request for interim order by the Department.
- Tribunal's authority to pass interim orders.

Analysis:
1. The appeal before the Appellate Tribunal CESTAT, New Delhi pertained to the sanctioning of a refund of Rs. 2,36,92,045.52 to the respondent under Section 11B of the Central Excise Act. The Tribunal had previously found that the duty incidence had not been passed on and the respondent was entitled to the refund amount. The Commissioner (Appeals) rightly considered this finding and passed an order in favor of the respondent in line with the Tribunal's decision.

2. The Department had filed an appeal in the Rajasthan High Court challenging the Tribunal's order but had not obtained any interim order during the six-year period. The Tribunal noted that the challenge to the Commissioner (Appeals) order was unfounded, given the clear findings in favor of the respondent by both the Tribunal and the Commissioner. The Tribunal emphasized that passing a stay order would essentially be a review of the previous decision, which was impermissible. Therefore, the Tribunal dismissed the appeal and the stay application.

3. The Tribunal held that the refund amount pursuant to the Commissioner's order would naturally be subject to any decision by the High Court. Passing an interim order of stay would only delay the implementation of the Tribunal's decision, which was deemed inappropriate. The Tribunal reiterated its role in rectifying only errors apparent on the record and concluded that there were no grounds to entertain the appeal further, leading to its dismissal.

This comprehensive analysis of the judgment highlights the key issues involved, the Tribunal's reasoning, and the final decision regarding the appeal and stay application in the case.