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TMI Blog2010 (4) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... d vide Misc. Order No. 419/07-SM(BR), dated 7-9-07. In other words, this is a second application for implementation of the order dated 27-3-2002 of the Tribunal. 2.1 The relevant facts for the purpose of disposing of the present application are that the refund claim filed by the applicant on 1-6-95 for a sum of Rs. 3,32,560/- was rejected by the original authority and the said order was up held by the Commissioner (Appeals). The matter came before the Tribunal and the Tribunal vide order dated 27-3-2002 remanded the matter to the adjudicating authority with the following directions/observations :- "4. I have carefully examined the submissions. The refund claim in question comprises three distinct elements. The claim of Rs. 2,81,558/- is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, will be held to be premature. As and when the classification dispute over chocolate-covered biscuits is settled by the adjudicating authority, the assessee will be at liberty to claim refund of any duty paid in excess and any such refund claim will be processed in accordance with law. Therefore, the refund claimed as on today in respect of chocolate-covered biscuits will stand rejected. Refund of any duty on remoulded chocolates held by this Tribunal to be non- excisable has to be allowed. 5, The orders of the lower authorities are sustained in so far as the refund claim in respect of chocolate-covered biscuits is concerned. It is made clear that this part of my order is not to be so interpreted as to hold that any future refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of the Tribunal's order dated 27-3-2002, a detailed and appealable order has been passed by the adjudicating authority. The applicant has, for whatever reason, not chosen to file appeal before the Commissioner (Appeals) against the de novo order of the original authority dated 30-7-07. After a lapse of nearly two years, they have chosen to file the present Miscellaneous Application on 19-6-06 stating that the original authority has passed the de novo order contrary to the terms of the order of the Tribunal dated 27-3-2002. 4. Learned Consultant for the applicant submits that the original claim filed by them in 1995 was rejected on the aspect of unjust enrichment and the Tribunal has gone into this aspect and ordered refund of part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner (Appeals) relating to the Tribunal's order dated 27-3-2002 are looked into, it will be clear that the order of the Tribunal is in their favour on unjust enrichment angle. The said submission is not acceptable. I notice that in respect of the very same order, Misc. Application was filed in 2006 and before the order dated 7-9-07 dismissing the application for implementation of the order of the Tribunal was passed, the original authority has already passed a detailed order on 30-7-07. The Tribunal has clearly noted that an appealable order has already been passed. In my considered opinion, the applicant should have gone before the Commissioner (Appeals) as prescribed under law and the commissioner (Appeals) would be bound to co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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