2009 (1) TMI 98 - HC - Central Excise

Refund assessee plea is that the Cheques were forcibly taken away by the officers of the Department and the amount was filled in by them, and thereafter, they were deposited - Whether Cheques have been handed over by the assessee voluntarily or otherwise, is a purely factual issue - Tribunal found that no OIO was issued to intimate the assessee that claim for refund is premature revenue s stand that SCN has not been issued, not acceptable tribunal rightly accepted refund claim

Summary

Issues:
- Whether the Tribunal correctly granted a refund pending adjudication of amounts voluntarily deposited by the Assessee?

Analysis:
The appellant-Revenue challenged the order of the Central Excise and Service Tax Appellate Tribunal, West Zone Bench, Ahmedabad, regarding the refund of amounts voluntarily deposited by the Assessee. The appellant contended that the Tribunal erred in allowing the appeal filed by the respondent-assessee since the show cause was pending adjudication, and no Order-in-Original was passed by the Commissioner. The respondent, a manufacturer of Cellulose powder and its derivatives, was availing exemption under the SSI Notification. The case involved the seizure of records and the dispute regarding the amount deposited by M/s. Dhariyal Chemicals towards the Assessee's liability. The respondent claimed that the Cheques were forcibly taken by the Department officers and the amount was filled in by them before being deposited. The department rejected the refund claim, leading the respondent to appeal. The Tribunal found no evidence to suggest that the blank Cheques were not filled in by the Department officers and paid to the Government's credit. Despite the absence of an Order-in-Original, the Tribunal concluded that the refund claim was not premature. The Tribunal also rejected the Revenue's argument that the show cause notice was not issued within the time limit, hence the amount was not refundable, and allowed the respondent's appeal.

Continuing the analysis, the High Court noted that the matter was at a premature stage with no legal proceedings initiated. The issue of whether the Cheques were handed over voluntarily or not by the Assessee was deemed factual and dependent on the evidence on record. The Court found the Tribunal's findings to be factual and based on the available material, thus warranting no interference. Consequently, the Court concluded that no substantial question of law arose for consideration, leading to the dismissal of the appeal. The judgment emphasized that the matter was factually driven, and the Tribunal's decision was based on the evidence presented, thereby justifying the dismissal of the appeal due to the absence of any substantial legal question.