2013 (11) TMI 1082 - AT - Central Excise

Non-filing of Appeal - Opportunity of Being Heard Held that - There are clear directions by the Tribunal while remanding the matter to Commissioner (Appeals) to decide the appeal on merits - it was not open to the appellate authority to again take the stand of non-filing of appeal - The Tribunal s order was not challenged by the Revenue before any higher appellate forum and as such it attained finality - The disposal of the matter on the ground of non-filing of the appeal by Commissioner (Appeals) when the matter was specifically remanded to him for decision on merits, has resulted in discomfort to the assessee and such an action on the part of the lower authorities, by sidelining the directions of the higher authorities shakes the faith of general public in the judicial system and such action need to be avoided order set aside matter remanded back to the Commissioner (Appeals) - it is not open to Commissioner (Appeals) to go into the question of filing or non-filing of appeal Decided in favour of Appellant.

Issues:
1. Confirmation of demand of duty against the appellant.
2. Adjustment of confirmed demand against the refund granted.
3. Appeal filed against the adjustment order.
4. Tribunal's reconsideration of the matter.
5. Commissioner (Appeals) rejection of appeal on the ground of non-filing.
6. Tribunal's directions for decision on merits.
7. Lower authorities' failure to follow Tribunal's directions.

Confirmation of Demand:
The original adjudicating authority confirmed a duty demand of Rs.52,328 against the appellant, which was later adjusted against a refund granted to them. The appellant filed an appeal against this demand confirmation before the Commissioner (Appeals).

Adjustment of Demand Against Refund:
The appellant contested the adjustment of the confirmed demand against the refund, arguing that no adjustment should have been made while the appeal against the demand confirmation was pending before the Commissioner (Appeals).

Appeal Against Adjustment Order:
The Commissioner (Appeals) rejected the appeal against the adjustment order, stating that no earlier appeal was filed by the appellant against the demand confirmation. This decision was upheld by the Tribunal initially.

Tribunal's Reconsideration:
Upon a Review of Order Application, the Tribunal reconsidered the matter and found evidence that the appeal was indeed filed before the Commissioner (Appeals) against the demand confirmation. The Tribunal directed the Commissioner (Appeals) to hear the appeal on its merits.

Commissioner (Appeals) Rejection:
Despite the Tribunal's directions, the Commissioner (Appeals) in a de novo proceeding rejected the appeal again, claiming that no such appeal was filed before him, leading to the rejection of the adjustment of the confirmed demand against the refund.

Failure to Follow Tribunal's Directions:
The Tribunal's order, remanding the matter to the Commissioner (Appeals) for a decision on merits, was not challenged by the Revenue before any higher forum and had attained finality. The Commissioner (Appeals) was bound by the Tribunal's decision to decide the appeal on its merits, rather than focusing on the non-filing of the appeal.

Decision and Remand:
The Tribunal's directions were clear for the Commissioner (Appeals) to decide the appeal on merits. The lower authorities' failure to follow these directions, resulting in discomfort to the assessee, was deemed inappropriate. Consequently, the impugned order was set aside, and the matter was remanded to the Commissioner (Appeals) for a decision on merits, without revisiting the issue of filing the appeal.

This detailed analysis covers the issues of confirmation of demand, adjustment against refund, appeal process, Tribunal's reconsideration, Commissioner (Appeals) rejection, failure to adhere to directions, and the subsequent decision for remand.

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