1997 (5) TMI 172 - AT - Central Excise

Summary

Issues:
1. Refund of deposit made pending appeal
2. Application for refund dismissed as barred by time under Section 11B
3. Jurisdiction of Assistant Commissioner in dismissing refund application
4. Tribunal's power to entertain appeal against Assistant Commissioner's order

Analysis:

Issue 1: Refund of deposit made pending appeal
The appellant deposited Rs. 20,000 as per the Tribunal's stay order pending appeal, seeking a refund after the appeal was allowed. The appellant argued that the deposit was not a payment of duty but a deposit under Section 35F pending appeal. The Tribunal agreed, stating that the limitation of six months under Section 11B for refund of duty does not apply to duty paid pending appeal. The Tribunal held that the appellant was entitled to the refund as the decision in appeal had not yet attained finality.

Issue 2: Application for refund dismissed as barred by time under Section 11B
The Assistant Commissioner dismissed the refund application as barred by time under Section 11B, citing the limitation period of six months from the date of deposit. The Tribunal disagreed, stating that the limitation does not apply to duty paid pending appeal. The Tribunal emphasized that the Revenue, being a party to the appeal, is bound to implement the order passed on appeal without invoking the limitation under Section 11B.

Issue 3: Jurisdiction of Assistant Commissioner in dismissing refund application
The Tribunal found that the Assistant Commissioner's order lacked inherent jurisdiction and was considered a nullity. The Tribunal set aside the Assistant Commissioner's order dated 9-10-1996, stating that the Tribunal had the authority under Rule 41 of the CEGAT (Procedure) Rules, 1982, to issue directions for the refund of the deposit made by the appellant.

Issue 4: Tribunal's power to entertain appeal against Assistant Commissioner's order
The Revenue argued that the Tribunal cannot entertain an appeal against the Assistant Commissioner's order since the appellant had filed an appeal to the Commissioner (Appeals). However, the Tribunal held that the Assistant Commissioner's order was without jurisdiction and set it aside. The Tribunal invoked its powers under Rule 41 of the CEGAT (Procedure) Rules, 1982, to issue directions for the refund and instructed the Commissioner (Appeals) not to consider the appeal against the Assistant Commissioner's order.

In conclusion, the Tribunal allowed the application, directing the Assistant Commissioner to refund the deposit made by the appellant and instructed the Commissioner (Appeals) not to proceed with the appeal against the Assistant Commissioner's order.