1989 (11) TMI 177 - AT - Central Excise

Appeal - Order of appellate authority final if no appeal is made within prescribed time limit

Summary

Issues:
Appeal involving exemption claim under Notification No. 178/77 dated 18-6-1977; Refund of duty; Order of Asstt. Collector rejecting claim; Appeal before Collector of Central Excise (Appeals) Bombay; Refund granted for specific period; Asstt. Collector issuing notice for refund recovery; Order directing credit of refund in PLA; Appeal against order of Collector (Appeals) No. 458/89-BD dated 28-2-1989; Finality of Collector (Appeals) order; Review of predecessor's order by Collector (Appeals); Jurisdiction of Asstt. Collector in refund implementation.

Detailed Analysis:
The appeal before the Appellate Tribunal CEGAT, Bombay involved an issue regarding an exemption claim under Notification No. 178/77 dated 18-6-1977 and the subsequent refund of duty. The appellants initially claimed exemption but paid full duty due to delayed instructions, seeking a refund of Rs. 1,03,589.52 for a specific period. The Asstt. Collector rejected the claim, leading to an appeal before the Collector of Central Excise (Appeals) Bombay. The Collector (Appeals) partially allowed the refund for a period but rejected the claim for an earlier duration as time-barred. Subsequently, the Asstt. Collector issued a notice for refund recovery, which was challenged by the appellants.

The main contention raised was the finality of the Collector (Appeals) order dated 27-12-1985, which sanctioned the refund within the time limit. The appellants argued that since no appeal was filed against this order, it had become final, and the Asstt. Collector was merely implementing it by initially issuing a cheque and later crediting the amount in the PLA. The appellants emphasized that the Asstt. Collector's actions were in line with the Collector (Appeals) order, making any further appeal by the department unwarranted.

On the other hand, the respondent contended that the Asstt. Collector's show cause notice for refund recovery allowed for a review of the order, justifying the appeal filed by the Collector (Appeals). However, after hearing both sides, the Tribunal observed that the issue could be resolved promptly. It was noted that the refund was granted by the Asstt. Collector based on the Collector (Appeals) order, which had attained finality. The Tribunal held that if the Collector deemed the refund inadmissible, an appeal should have been directed against the original Collector (Appeals) order, rather than reviewing the implementation order by the Asstt. Collector.

Consequently, the Tribunal allowed the appeal, setting aside the order of the Collector (Appeals) dated 28-2-1989, as it was deemed to be passed without jurisdiction and amounted to a review of the predecessor's order. By disposing of the appeal, the Tribunal rendered the stay application moot for further consideration.