2017 (1) TMI 705 - AT - Central Excise

Restoration of appeal - rectification of mistake - Held that - it is not only issue of classification or refund but it should also have issue of legal and/or recurring nature - On going through the records, I find that the respondent filed refund under N/N. 41/2007-S.T. They also claimed refund alternatively under Rule 5 of CCR, 2004 before Adjudicating Authority as well as Commissioner (Appeals). The Commissioner (Appeals) has extended the benefit of refund on the ground that refund is maintainable under Rule 5 read with N/N. 5/2006-C.E. (N.T) - I do not see, any legal or recurring issue involved in the present case of refund. Therefore, ROA as well as ROM applications are not maintainable - appeal dismissed - decided against appellant.

Summary

Issues:
Applications for restoration of appeals and rectification of mistake based on revised Board's Circular dated 17-12-2015; Dismissal of Revenue's appeals on litigation policy; Involvement of classification and refund issue; Existence of legal and recurring issues in the case.

Analysis:
The judgment deals with applications filed by the Revenue for the restoration of appeals and rectification of mistake in the Tribunal's Order based on the revised Board's Circular dated 17-12-2015. The Revenue contended that their appeals were dismissed on the grounds of litigation policy, which was revised to exclude cases involving classification and refund issues that are of a recurring nature. The Revenue argued that since the appeals involved refund and legal issues, the Bench should have decided on the merit of the case instead of disposing of them based on the litigation policy.

The ld. Asstt. Commissioner (AR) representing the Revenue reiterated the grounds stated in the applications, emphasizing the importance of addressing the refund and legal issues in the appeals. On the other hand, the respondent's counsel argued that while the issue pertained to refund, there were no significant legal or recurring issues involved, justifying the Tribunal's decision to dispose of the appeals based on the Government's Litigation Policy.

Upon careful consideration of the submissions from both parties and a review of the Circular dated 17-12-2015, the Member (J) found that the case did not solely involve classification or refund issues but also required the presence of legal and/or recurring issues to warrant a different approach. After examining the records, it was noted that the respondent had filed for a refund under a specific notification and alternatively under a particular rule. The Commissioner (Appeals) had granted the refund based on the applicability of the rule and notification. The Member (J) concluded that based on these facts, there were no significant legal or recurring issues in the case related to the refund. Consequently, the applications for restoration of appeals and rectification of mistake were deemed not maintainable and were dismissed accordingly.

Overall, the judgment highlights the importance of considering the presence of legal and recurring issues in cases involving classification and refund matters, emphasizing the need for a comprehensive assessment before determining the appropriate course of action.