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TMI Blog2010 (9) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... ental letters dated 5-3-1997 and 5-5-1997 written in the absence of the parties cannot possibly be termed as legal order, against which, the assessee was required to file appeal and therefore the Tribunal fell in legal error in dismissing the appeal of the assessee by order dated 15-2-2007 on the ground of its non-maintainability and that the Tribunal ought to have decided the real controversy between the parties on merits instead of dismissing the appeal on technical ground. Having so observed, Hon ble High Court has remanded the matter to the Tribunal for its afresh decision on merits in accordance with law. 3. The direction of Hon ble High Court to decide the appeal afresh on merits in accordance with law would obviously require the Tribunal to decide the appeal taking into consideration the controversy relating to the claim of refund which is sought to be raised in the matter. 4. The provisional assessment in relation to the goods to be cleared during the period from April, 1996 to September, 1996 was made under order dated 7-9-1994 as there was dispute as to what was the exact normal price of the goods cleared by the appellants. Since according to the department, there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 5-5-1997 passed by the competent authority, they were not entitled to raise the dispute about liability to pay duty in terms of finalization of assessment unless such order is subjected to challenge in appeal in that regard. Reliance was placed in the decision in the matter of C.C.E., Kanpur v. Flock India (P) Ltd. reported in 2000 (120) E.L.T. 285 (S.C.). Accordingly, the appeal filed by Revenue was allowed and the order of refund was set aside. Being aggrieved, the appellants filed the present appeal which came to be dismissed by the Tribunal by order dated 9-2-2007 holding that the decision of the Commissioner (Appeals) was in consonance of the Supreme Court in Flock India (P) Ltd. case. The said order as already stated above, was challenged in Central Excise Appeal No. 139 of 2008 before Hon ble Punjab and Haryana High Court and the same was allowed under order dated 4-3-2010. While setting aside the order of the Tribunal, the matter has been remanded for afresh decision on merits in accordance with law and not merely on the basis of maintainability of appeal. 6. Learned Advocate for the appellants taking me through order passed by Hon ble Punjab and Haryana High Court and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o of the Hon ble Supreme Court in the case of Flock India (P) Ltd. is applicable herein. 9. Having set aside the said order of the Tribunal, Hon ble Punjab and Haryana High Court has directed the Tribunal to decide the matter afresh on merits in accordance with the provisions of law. 10. It is necessary to note that when the matter came up before the Commissioner (Appeals) and it was disposed of on 11-11-2004, the Commissioner (Appeals) was not only dealing with the appeal filed by the department but was also dealing with the cross objection filed by the appellants. 11. The controversy in the matter which is sought to be raised by the assessee in the background of above quoted facts is whether the order dated 12-4-2000 is finalization of assessment cum refund order. In fact perusal of the order passed by the Hon ble High Court discloses that the argument which is sought to be advanced in this regard is no more available to the appellants. It was the case of the appellants before the Hon ble High Court that there was no order of final assessment passed in the matter and by no stretch of imagination, the communication dated 5-5-1997 could be said to be the order of the fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be granted. The scope of order for refund claim is restricted to the claim made and cannot extend to the adjudication relating to the duty liability of the assessee. The duty liability has necessarily to be decided in the assessment proceeding. Having so finalized, if it is found that the assessee had paid over and above amount payable in terms of finalization of the assessment, then the authority can order refund of such excess amount. In the absence of such order of refund made by the authorities at the same time finalization of assessment, the claim in that regard can be made by the assessee only after finalization of assessment. The proceeding in the refund claim would be in the nature of execution of proceedings. Obviously, therefore, the scope of inquiry in such proceedings would be limited to refund of the amount in terms of assessment order. 14. Once it is found that there has been no order of finalization of assessment passed by the competent authority in a proper proceeding in that regard, the question of refunding any amount by the authority dealing with the refund claim cannot arise. Being so, the order dated 12-4-2000 could not be the order of the finalizati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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