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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 ..... cellaneous Application for implementation of the same has been dismissed by Misc. Order dated 7-9-07. - E/2113/2001-SM - 99/2010-SM(BR)(PB) - Dated:- 30-4-2010 - Shri M. Veeraiyan, Member (T) REPRESENTED BY: Shri Manjit Singh, Consultant, for the Appellant. Shri V.K. Saxena, Jt. CDR, for the Respondent. [Order (Oral)]. - This is a Miscellaneous Application seeking implementation of the order of the Tribunal vide Final Order No. A/461/02/NB(S/M), dated 27-3-2002 [2002 (143) E.L.T. 656 (Tri.-Del.)]. There was already a Miscellaneous Application No. 951/2006-SM for implementation of the said order dated 27-3-2002 which has been dismissed vide Misc. Order No. 419/07-SM(BR), dated 7-9-07. In other words, this is a second applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value of the non-excisable item viz, converted chocolates cannot be included in the aggregate value of clearances for determining the limit of exemption under Notification No. 1/93-CE. As regards the excess duty paid on chocolate confectionery under the undisputed tariff entry CSH 1803.00, correctness of the quantum of duty to be refunded requires to be checked after excluding the assessable value of remoulded chocolates from the aggregate value of clearances. In regard to chocolate-covered biscuits, it has been conceded by ld. consultant that the classification dispute is still alive before the adjudicating authority. This part of the refund claim, therefore, will be held to be premature. As and when the classification dispute over cho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that time, the adjudicating authority has passed a detailed order dated 30-7-07. This fact was also brought to the notice of the Tribunal. The Tribunal vide Misc. Order dated 7-9-07 dismissed the application with the following observations: "4. I find that in the present case, the Tribunal remanded the matter to the adjudicating authority with certain directions and in pursuance to the order passed by the Tribunal, an appealable order has been passed by the adjudicating authority. In these circumstances, I find no merit in the application, the same is dismissed." 3. In other words, the Tribunal while passing the order dated 7-9-07 has noted that in pursuance of the Tribunal's order dated 27-3-2002, a detailed and appealable order has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal authority therefore, has gone into the aspect of unjust enrichment and passed an order. If the applicant was aggrieved, they ought to have challenged the same before the Commissioner (Appeal) and they cannot be allowed to bypass the Commissioner (Appeals). He submits that this is not a fit case for invocation of Rule 41 of CESTAT Procedure Rules. 6. I have carefully considered the submissions from both sides and perused the records. On careful perusal of the order dated 27-3-2002, I do not find any specific finding on the claim regarding unjust enrichment. The learned Consultant for the applicant submits that if the orders of the original authority and the Commissioner (Appeals) relating to the Tribunal's order dated 27-3-2002 are lo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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