2018 (5) TMI 1397 - AT - Central Excise

Refund - Scope of SCN - order of provisional assessment - case of appellant is that the impugned order rejecting the refund of the appellant on totally new ground is not sustainable in law and is contrary to the direction of the Tribunal vide Order dated 20.05.2004 - Held that - in a De novo proceedings both the authorities have carved out a case which was not before the Tribunal and the Commissioner (Appeals) in the earlier round of litigation. The order of provisional assessment is for all the brands of electric dry cell batteries. Subsequently the Commissioner (Appeals) vide his order dated 19.08.2004 has categorically directed the Assistant Commissioner to finalize the assessment De novo after considering the assessments in respect of all brands which were provisional in nature - Further, the Revenue has not filed any appeal against the order passed by Commissioner (Appeals) dated 19.08.2004 and the said order has become final. Therefore, in De novo proceedings the Assistant Commissioner cannot carve out a new ground for rejection of the refund. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Provisional assessment procedure for dry cell batteries under different brand names, rejection of refund application, jurisdiction of appellate authorities, compliance with tribunal orders, sustainability of impugned order.

Analysis:
The appeal challenged an order rejecting a refund application for differential duty paid under protest by the appellant, a manufacturer of dry cells under the brand name "Geep" and supplier to "Eveready Industries Limited." The Department withdrew provisional assessment permission, leading to a refund claim and subsequent rejection based on different treatment of brands. The Commissioner (Appeals) initially allowed the appeal for De novo adjudication, but subsequent orders upheld the rejection, prompting multiple appeals and remands.

In the appellate hearing, the Revenue consultant argued against the rejection of the refund on new grounds, citing non-compliance with tribunal directions and factual inaccuracies. The consultant contended that revisiting settled issues in De novo proceedings amounted to contempt of court and emphasized the need for adherence to higher authorities' decisions.

The Assistant Commissioner supported the impugned order, reiterating its findings. However, the judicial member noted discrepancies in the De novo proceedings, highlighting the need for consistency with previous tribunal and appellate orders. The member referenced specific tribunal and appellate directives regarding provisional assessment for all brands and emphasized the finality of certain appellate decisions, precluding new grounds for rejection.

Ultimately, the impugned order was set aside, allowing the appellant's appeal with potential consequential relief. The decision emphasized adherence to tribunal and appellate directives, rejecting new grounds for rejection in De novo proceedings and underscoring the finality of certain appellate decisions. The judgment aimed to ensure legal sustainability and consistency in addressing the refund dispute related to differential duty payments under the provisional assessment regime for dry cell batteries.