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TMI Blog2017 (6) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... . - E/185/2006 - 40870/2017 - Dated:- 29-5-2017 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Ms. Udhaya Bharathi, Advocate for the Appellant Shri B. Balamurugan, AC (AR) for the Respondent ORDER Per: Madhu Moham Damodhar, The facts of the case are that the appellants, inter alia, manufactured following line materials: (a) Transformer structure materials (b) Stay rods (c) T-cross arms and (d) Clamps 2. Pursuant to introduction of new Central Excise Tariff Act, 1985, appellants had filed fresh classification list for 20 items including the above mentioned items. The period of dispute is between 1.4.1986 and 29.2.1988. Department took a view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sanctity attaching to the finality of any proceeding, be it a suit or any other proceeding. Where a duty has been collected under a particular order, which has become final, the refund of that duty cannot be claimed unless the order is set aside according to law. On the other hand, it is also equally important that the decision given by the lower authority where the binding decision of Tribunal is not brought to notice is in the nature of an Order per incuriam. Hence such order does not have binding effect. It is settled principle that the Rule of per incuriam can be applied where an adjudicating authority omits to consider the decision rendered by the superior forum inadvertently. In that case, the appellants cannot insist for grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,34,447.55 were filed in consequence to Order-in-Original dated 29.11.2011. She submits that the said Order-in-Original was not appealed by the department, hence the decision of the adjudicating authority treating the goods manufactured by the appellants as non-excisable viz. (a) stay rods, (b) T cross arms and (c) clams will therefore be binding on the department. 5. On the other hand, learned AR Shri B. Balamurugan contends that the adjudicating authority in the Order-in-Original No. 27/2011 dated 29.11.2001, pursuant to which appellants had filed refund claims, in para 2 of that order had referred to Order-in-Appeal No. 74/84 dated 5.6.1984 of Collector (Appeals), inter alia, holding the items viz. stay rods, T cross arms and clamps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that the items to be excisable, but has not taken note of the said order having been set aside by the Tribunal vide order dated 18.4.1991. 6.4 Revenue may very well argue that the Assistant Commissioner had been remiss in not following the jurisdictional Tribunal's order dated 18.4.1991 which had taken a contrary view. However, we find that the said authority has nonetheless taken cognizance and relied upon a subsequent decision of the Tribunal, albeit of CESTAT, Bangalore Bench in respect of the very same disputed goods in the case of Kerala State Electricity Board Vs. Commissioner of Central Excise, Cochin as reported in 2001 (133) ELT 104 (Tri. Bang. ). 6.5 Even if the department had been aggrieved with the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awed and not supported by law. 6.8 So also, we are unable to find any resonance with the findings of the lower appellate authority in para 8.9 of the impugned order, justifying his decision against the assessee on the ground that there was neither any plea earlier on the part of the appellants before Collector (Appeals) that they were entitled to SSI exemption in terms of Notification No. 175/86-CE nor was there any direction by the Collector (Appeals) to decide the item considering that aspect is also devoid of legal substance and cannot be sustained. 6.9 In the event, we have no hesitation in setting aside the impugned order upholding the rejection of refund claims for ₹ 6,95,644.53 and ₹ 48,34,447.55 filed by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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