9911796707
TMI Blog1997 (5) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... - against the applicant herein. On the applicant s Stay Petition, the Tribunal vide it Stay Order No. S/162, A/280/Cal/95, dated 13-3-1995 directed the applicant to deposit Rs. 20,000/- in cash within eight weeks from the date of receipt of this order. It was further ordered that on compliance of this Order (dated 13-3-1995), the recovery of the balance amount of duty and of penalty shall remain stayed during the pendency of the appeal. 2.2 The applicant, in pursuance of the aforesaid stay order dated 13-3-1995 deposited Rs. 20,000/- on 25-5-1995. 2.3 Tribunal vide its Order Nos. A/1147-1148/Cal/95, dated 31-10-1995 allowed the appeals of the applicant herein with consequential relief to him. 2.4 Consequently, the applicant filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a proper remedy. Question of limitation in implementing the order of the Tribunal does not arise. He relies on a judgment of W.R.B. (Single Member) reported in 1995 (79) E.L.T. 277 in the case of M/s. Harish Textile Engineering Ltd. v. Collector of Central Excise, Bombay-I. 3.1 We have heard the authorised representatives from both sides who have re-iterated their respective position as set out above. 4.1 We have carefully considered the pleas advanced from both sides. An adjudication by a competent authority of a `lis between parties is final and binding inter-parties, subject to decision of any superior competent Court/Tribunal for which a law provides. Relief following from such an adjudication cannot be denied by a party to such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 35F. The fact that duty in terms of an impugned order has been paid by an assessee is not altered whether he pays it on his own before filing an appeal or he pays it (fully or partly) in terms of an appellate authority s order under the proviso to Section 35F after filing an appeal. 4.3 Crux of the question before us is whether the limitation of six months provided for refund of duty under Section 11B would apply to payment of such duty pending an appeal against an adjudication order. We have no doubt in our mind that such a limitation would not be applicable. The adjudication order was subject to the decision in the pending appeal. It had not yet attained finality. If the decision in appeal itself takes a period longer than six mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng. The Tribunal cannot entertain an appeal against Assistant Commissioner s order. Therefore, the application should be rejected as non-maintainable and in any case, infructuous since the Commissioner (Appeals) is already seized of the Assistant Commissioner s order. 5.2 Opposing the contention, learned Representative of the applicant submits that Assistant Commissioner s order without jurisdiction. Tribunal has got the necessary power under Rule 41 of the CEGAT (Procedure) Rules, 1982 to get its orders implemented and as a matter of practice, the Tribunal is invoking the powers under Rule 41 ibid to entertain such Miscellaneous Application. Assistant Commissioner s order being without jurisdiction is a nullity. It should, therefore, be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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