1996 (4) TMI 217 - AT - Central Excise

Summary

Issues:
Appeal against refund claim denial based on unjust enrichment and procedural grounds.

Analysis:
The appeal before the Appellate Tribunal CEGAT, Mumbai involved a dispute regarding a refund claim filed by the respondents for Rs.45,000, covering the period from 23-1-1990 to 12-3-1990. The Assistant Collector initially sanctioned the refund claim, prompting the department to appeal before the Collector (Appeals) citing unjust enrichment issues. The Collector (Appeals) dismissed the department's appeal, ruling that the appeal was not maintainable due to the failure to follow the proper procedure under Section 11A within the prescribed time limit of 6 months from the date of the original refund order. The department challenged this decision, arguing that under Section 35E of the Central Excises & Salt Act, 1944, they had the right to appeal against the Assistant Collector's order, and the order did not become final until the appeal was decided. The department contended that the Collector (Appeals) erred in his interpretation of the law and that the appeal should be allowed, setting aside the refund order.

The department's representative relied on the Tribunal decision in Andhra Sugars Ltd. v. Collector of Central Excise, emphasizing that the appeal process is a continuation of the main proceedings and does not require a fresh notice of demand when challenging the original refund order. On the other hand, the respondent's consultant supported the Collector (Appeals)' decision, citing the judgment in Orissa Cement Ltd. v. Collector Central Excise and other Tribunal decisions. The Appellate Tribunal noted that the appeal process is considered a continuation of the main proceedings, and an appealable order does not attain finality until the appeal is decided. The Tribunal rejected the Collector (Appeals)' interpretation of Section 35A(3) and upheld the department's appeal, setting aside the refund order.

The Tribunal emphasized that the law as amended must prevail, rendering ineffective any pre-amendment decisions cited by the respondent's consultant. The Tribunal found the Collector (Appeals)' decision contrary to the statutory provisions and set it aside. Since the respondents did not file a cross-objection challenging the finding that the Adjudicating Authority's order should be set aside, the Tribunal upheld that finding. Consequently, the Tribunal allowed the department's appeal, setting aside the refund claim sanction.