2010 (8) TMI 244

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..... ther any decision nor any order has been passed by the Central Excise officer which was communicated to the appellants - neither any decision nor any order of the Central Excise Officer is available – order set aside - appeal is allowed
Shri Ashok Jindal, Member (J) REPRESENTED BY : Shri P.V. Sadavarte, Advocate, for the Appellant. Shri Manish Mohan, SDR, for the Respondent. [Order]. - The appellant has filed this appeal against the order of denial of refund claim by the lower authorities. 2. The facts of the case are that the appellants filed a refund claim of Rs. 41,457/- on the ground that the appellant has cleared their final product under duty paid invoices in the month of September, 2007 involving total duty of Rs. 11,5 .....

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..... without challenging the assessment, the refund claims were filed. On the other hand no assessment or decision has been passed by any Central Excise Officers. To support his contention he placed reliance on the observation made by this Tribunal, while granting stay, in the case of Gimatex Industries Pvt. Ltd. v. Commissioner of Central Excise, Nagpur - 2010 (02) LCX 0035. 4.On the other hand, the learned DR submitted that the appellants have filed their RT-12 return and the assessment done has been accepted by the department. Hence, without challenging the assessment refund claim is not maintainable and the same has been held by the lower authorities, which is correct view. Moreover, when the appellant realised that they committed an error, .....

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..... Central Excise (Appeals) hereafter in this Chapter referred to as the (Commissioner (Appeals)) (within sixty days) from the date of the communication to him of such decision or order : (Provided that ** {(1A)*** 7.2 Going through the provisions of Section 35, it is clear that any person who is aggrieved by any decision or order passed under this Act by a Central Excise Officer may appeal to Commissioner (Appeals) within 60 days from the date of communication to him of such decision or order. According to the reading of the same, it is clear that first the order should be passed by the Central Excise officer or the decision is to be taken by the Central Excise Officer. Secondly the said decision or the order has to be communicated .....

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