2017 (8) TMI 462 - AT - Central Excise

Maintainability of appeal - refund application of unutilised CENVAT credit - Held that - in the first round of litigation, the Commissioner (A) vide order dated 4.7.2012 in the order portion has allowed three appeals of the appellant and set aside the impugned order and only for the purpose of quantification, he has observed that the same will be done by the original authority as per Rule 5 of CCR, 2004 and notification issued thereunder - Revenue was not satisfied with this order and they have challenged this order before the Tribunal by filing three appeals and all the three appeals of the Revenue were dismissed by this Tribunal vide order dated 8.10.2015. Further, the Revenue has challenged the order of the Tribunal dated 8.10.2015 before the Hon ble High Court of Karnataka which is still pending. Since the issue involved in the present appeal is yet to attain finality and is still pending before the Hon ble High Court of Karnataka as stated by both the sides, therefore, it was premature for the original authority to proceed with the matter and decide the refund claim of the appellant - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Rejection of refund claim by Commissioner (A)
- Appellant's eligibility for refund
- U-turn by Commissioner (A) in decision
- Pending appeals before Hon'ble High Court
- Premature decision by original authority

Analysis:
1. Rejection of refund claim by Commissioner (A:
The appeal was against the order rejecting the refund claim by the Commissioner (A) and upholding the Order-in-Original. The appellant, engaged in manufacturing battery-operated electric cars, filed a refund claim for unutilized CENVAT credit. Despite the appellant's compliance with rules and notifications, the Assistant Commissioner rejected the refund claim. The Commissioner (A) initially allowed the appeal but left the quantification to the original authority. Subsequently, the appeal was rejected again, leading to the present appeal.

2. Appellant's eligibility for refund:
The appellant contended that the impugned order failed to appreciate all facts and laws. The appellant highlighted the inconsistency in the Commissioner (A)'s decisions, where the same authority first allowed the refund applications and later rejected the appeal. The appellant argued that the Revenue's subsequent appeals were dismissed by the Tribunal, and the matter was pending before the Hon'ble High Court. The appellant emphasized that the original authority should not have proceeded with the quantification until the High Court's final decision.

3. U-turn by Commissioner (A) in decision:
The appellant raised concerns about the Commissioner (A)'s reversal of decisions regarding the refund claim. While initially allowing the appeal and setting aside the Order-in-Original, the Commissioner (A) later rejected the appeal, leaving the quantification to the original authority. This inconsistency in decisions was a significant point of contention for the appellant.

4. Pending appeals before Hon'ble High Court:
The unresolved nature of the issue was highlighted, as the matter was pending before the Hon'ble High Court of Karnataka. The appellant argued that the original authority and the Commissioner (A) should have awaited the High Court's decision before making any determinations regarding the refund claim. The pendency of the appeals before the High Court indicated that the matter was not conclusively settled.

5. Premature decision by original authority:
The Tribunal, after considering submissions from both parties and reviewing previous orders, found that the original authority's decision to proceed with the matter was premature. Given the pending appeals before the High Court and the lack of finality in the issue, the Tribunal deemed the impugned order unsustainable in law. Consequently, the Tribunal set aside the impugned order and allowed the appeal of the appellant, emphasizing the need for a conclusive decision by the High Court before further proceedings.

This detailed analysis of the judgment addresses the various issues involved, including the rejection of the refund claim, the appellant's eligibility, the Commissioner (A)'s changing decisions, the pending appeals before the High Court, and the premature actions of the original authority.