2007 (2) TMI 224 - HC - Central Excise

Summary

Issues:
1. Condonation of delay in re-filing the appeal.
2. Interpretation of Section 35G of the Central Excise Act, 1944.
3. Reopening of the matter regarding determining of Annual Capacity of Production (ACP).
4. Authority of Commissioner to review his own order.

Analysis:
1. The judgment begins by addressing the delay in re-filing the appeal, which was condoned for 310 days based on the reasons stated in the application.

2. The appeal under Section 35G of the Central Excise Act, 1944 was filed by the Revenue, claiming substantial questions of law arising from an order passed by the Customs, Excise & Service Tax Appellate Tribunal. The Revenue raised questions regarding the reopening of the matter related to the determination of Annual Capacity of Production (ACP) and the authority of the Commissioner to review his own order.

3. The case involved an assessee seeking a refund of excise duty under the Compounded Levy Scheme, which was initially rejected by the Deputy Commissioner and upheld by the Commissioner (Appeals). The Tribunal, in its order, referred the matter back to the adjudicating authority for re-examination. The Revenue argued that the assessee, by not challenging the order of determination of capacity, was not entitled to seek relief in the refund proceedings. However, the Tribunal's decision to remit the matter back for re-examination was deemed appropriate as no final determination had been made.

4. The learned Counsel for the assessee contended that the Tribunal's decision to remit the matter back to the adjudicating authority did not grant any relief to the respondent, and no substantial question of law arose from the Tribunal's order. The High Court agreed with this contention, stating that since the Tribunal did not adjudicate on any legal issue warranting an appeal, no question emerged for determination. Consequently, the appeal was dismissed.

In conclusion, the High Court dismissed the appeal, emphasizing that no substantial question of law arose from the Tribunal's order remitting the matter back to the adjudicating authority for re-examination, as no final determination had been made.