2023 (8) TMI 120 - AT - Central Excise

Sanction of Refund claim allowed by one authority and denied by other - whether once the Commissioner (Appeals) upheld the order passed by original authority, he could have set aside the same? - HELD THAT - The Commissioner (Appeals) instead of hearing both appeals together has heard the appeals separately which has resulted in passing conflicting orders. The order passed by Commissioner (Appeals) in the appeal filed by the appellant is prior to the order passed in the department s appeal. When an order has already been passed upholding the sanction of part of the refund claim, the same authority cannot pass another order setting aside the sanction of entire claim. Such order is ab initio void and non-est. Further the department has not preferred any appeal against the order dated 08.10.2013 and the same has attained finality. Moreover, in the present case, it is seen that the Show Cause Notice is issued proposing to restrict the refund claim to Rs. 4,27,062/- and not proposing to reject the entire claim. For this reason also the impugned order passed so as to reject the entire refund claim is not justified. There are no hesitation to conclude that the impugned order is not sustainable and requires to be set aside - appeal allowed.

Summary

Issues Involved:
1. Appeal against rejection of refund claim.
2. Appeal against setting aside the sanction of refund.

Summary:
Issue 1:
The appellant filed a refund claim under Notification No. 41/2007-st but received only a partial refund after a Show Cause Notice was issued proposing to reject the remaining amount. The Commissioner (Appeals) upheld the original authority's decision to sanction only a partial refund, which the appellant did not appeal against. Subsequently, the department appealed against the partial refund sanction, leading to the Commissioner (Appeals) setting aside the partial refund and rejecting the entire claim. The appellant challenged this decision before the Tribunal, arguing that once an order is upheld, it cannot be set aside. The department contended that the entire claim should be rejected based on other grounds.

Issue 2:
The Tribunal noted that the Commissioner (Appeals) heard the appeals separately, resulting in conflicting orders. The order upholding the partial refund had already attained finality, and the department did not appeal against it. The Show Cause Notice only proposed restricting the refund claim, not rejecting it entirely. Therefore, the Tribunal found the decision to reject the entire claim unjustified and declared it void. The Tribunal set aside the impugned order and restored the original authority's decision to sanction a part of the refund claim.

(Order pronounced in the open court on 02.08.2023)