2016 (12) TMI 1173 - AT - Central Excise

Refund claim - time bar - Held that - It is observed from Order-in-Appeal dated 30.07.2007 that first appellate authority extended personal hearing to the Appellant on three occassions, but Appellant herein did not attend any of those personal hearings. Even in the cross-objections, filed by the Appellant before the first appellate authority, also Appellant did not bring out that the earlier Order-in-Appeal dated 20.07.2004 passed by the same appellate authority to the effect that time bar aspect of the refund claim already stands decided for the same refund claim. However, in the interest of justice Order-in-Appeal dated 30.07.2007 is set aside as the same appellate authority cannot take contrary views on an issue in the same proceedings on time bar nature of the refund claim. Accordingly Appeal filed by the Appellant is allowed by way of remand to the First Appellate authority by setting aside the Order-in-Appeal dated 30.07.2007. First appellate authority should extend an opportunity of personal hearing to the Appellant to explain their case - appeal allowed by way of remand.

Issues:
1. Time bar nature of the refund claim.
2. Applicability of previous Order-in-Appeal dated 20.07.2004 on the same issue.
3. First appellate authority's ability to take different views in the same proceedings.

Analysis:
1. Time bar nature of the refund claim:
The Appellant filed an appeal against Order-in-Appeal No.16/CE(A)/GHY/07, claiming that the refund was time-barred as it was filed four years after the duty payment. The Appellant availed area-based exemption and filed a refund claim of ?32,57,890, which was initially sanctioned but later set aside by the first appellate authority. The Appellant argued that a previous Order-in-Appeal dated 20.07.2004 had already decided that the refund claim was not time-barred, a decision accepted by the department. The Tribunal observed that the first appellate authority cannot take contrary views on the time bar nature of the refund claim in the same proceedings. The Tribunal set aside the Order-in-Appeal dated 30.07.2007 and remanded the case to the first appellate authority for a fresh hearing, emphasizing the need for a personal hearing and cooperation from the Appellant.

2. Applicability of previous Order-in-Appeal dated 20.07.2004:
The Appellant contended that the previous Order-in-Appeal dated 20.07.2004, which held that the refund claim was not time-barred, should have been considered final and binding. The Tribunal noted that the department had accepted this decision, and therefore, the first appellate authority could not take a different view on the same issue in the subsequent proceedings. The Tribunal emphasized the importance of consistency in decisions within the same proceedings and directed the first appellate authority to provide a fair opportunity for the Appellant to present their case.

3. First appellate authority's ability to take different views:
The Tribunal highlighted that the first appellate authority's decision to set aside the refund claim based on the time bar issue, despite a previous favorable decision on the same matter, was not acceptable. The Tribunal emphasized that once an issue has been decided and accepted by the department in an Order-in-Appeal, the same issue cannot be re-litigated in subsequent proceedings. Therefore, the Tribunal allowed the Appellant's appeal, setting aside the Order-in-Appeal dated 30.07.2007 and remanding the case for a fresh hearing to ensure procedural fairness and consistency in decision-making.

This comprehensive analysis of the judgment addresses the issues of the time bar nature of the refund claim, the applicability of previous decisions, and the consistency of views within the same proceedings, providing a detailed understanding of the Tribunal's decision and the legal principles involved.

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