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TMI Blog2013 (9) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... als) that in absence of any statutory provision, the direction of the Committee on Disputes (constituted for resolving the dispute between Public Sector Undertaking and Government Department, in carrying out the litigation before Tribunal and other higher judicial fora), to the appellant to approach the Commissioner (Appeals) for resolution of dispute, which resulted into filing the second appeal under Section 35A of the Central Excise Act, 1944, against the same Order-in-Original, is not binding on him being devoid of any authority under the law. Second appeal had been filed by the appellant beyond the statutory and condonable limit of 90 days (60+30) and hence not maintainable as the Commissioner (Appeals) has not been vested with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 19-9-2006, dismissed the Revenue s appeal. The Deputy Commissioner, pursuant to the said remand order of the ld. Commissioner (Appeals), decided the claim afresh and vide his Order dated 20-8-2008, rejected the refund claim again on the ground of unjust enrichment. Subsequently, the appellant filed an appeal before the ld. Commissioner (Appeals). The ld. Commissioner (Appeals) also rejected the appeal vide Order dated 18-3-2009. Aggrieved by the said Order-in-Appeal dated 18-3-2009, the appellant filed an appeal before this Tribunal and the said appeal was rejected by this Tribunal on 13-8-2009 for want of clearances from the Committee on Disputes (COD). The Committee on Disputes in considering the application of the appellant to pursue t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust enrichment, as the incidence of duty had never been passed by the appellant to M/s. NRL as M/s. NRL did not reimburse the excess duty paid by the appellant, for which, the said refund claim has been filed with the Department. 4. The ld. AR for the Revenue supporting the order passed by the ld. Commissioner (Appeals), has submitted that the ld. Commissioner (Appeals) has rightly rejected the appeal of the appellant on the ground that on the same issue, appeal for second time, cannot lie before him as per Sec. 35A of CEA, 1944. It is his submission that even in cases of remand proceedings, no fresh appeal is filed, but the higher appellate forum remand the matter to the authority subordinate to it for re-consideration of the issues. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der before the ld. Commissioner (Appeals), was also rejected. The appellant then carried out the litigation before this Tribunal, and their appeal before this Tribunal was also rejected for want of clearance from Committee on Disputes (COD) to pursue the appeal before this Tribunal. It is their claim that in the meantime, the Committee on Disputes (COD) though declined permission to the appellant to pursue the appeal before this Tribunal, however, directed them to approach the ld. Commissioner (Appeals) for resolving the dispute. Consequently, they approached the Commissioner (Appeals) by filing another appeal against the same Order-in-Original dated 18-5-2010. I find that the ld. Commissioner (Appeals) has rejected their second appeal on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Public Sector Undertaking and Government Department, and the observation of the Hon ble Supreme Court in this regard, the ld. Commissioner (Appeals) had concluded at Para 17 of his order as follows : 17. I also do not find from any legal provision of statute or any judicial pronouncements supporting the view that COD can remand the case back to the adjudicating authority/appellate authority . 7. On a careful consideration of the aforesaid reasons/conclusions of the ld. Commissioner (Appeals), I do not find any infirmity in the same. In my opinion also, the second appeal cannot lie under Section 35A of CEA, 1944 against the same Order-in-Original which has been challenged earlier before the Commissioner (Appeals) by filing a p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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