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TMI Blog2008 (5) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... mber (T) Ms. Nirmala Chopra, Advocate, for the Appellant. Ms. Sudha Koka, SDR, for the Respondent. [Order per: T.K. Jayaraman, Member (T)]. - This appeal has been filed against the Order-in-Appeal No. 03/2007-S.T., dated 31-1-2007, passed by the Commissioner of Central Excise (Appeals-II), Bangalore. 2. Ms. Nirmala Chopra learned Advocate appeared on behalf of the appellants and Ms. Sudha Koka, learned SDR for the Revenue. 3. We heard both the sides. The learned Advocate stated that the appellants, M/s. Marigold Paints Pvt. Ltd. are the manufacturers of various types of paints which are excisable. They entered into an agreement with M/s. Shatabdhi Paints and appointed the said Shatabdhi Paints as their 'Consignment Sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refund claim relying on the Tribunal's decision rendered in the case of Prabhat Zarda Factory (India) Ltd. v. CCE - 2006 (2) S.T.R. 584 (Tribunal) = 2002 (145) E.L.T. 222 (Kolkata). The appellants appealed to the Commissioner (Appeals) and the Commissioner (Appeals) after going through the agreement, came to a conclusion that the appellants have relied on Mahavir Generics case, but the Department appealed against Mahavir Generics' decision. Therefore the appeal has been rejected. 4. The learned Departmental Representative re-iterated the impugned Order-in-Appeal. 5. On a very careful consideration of the issue, we find that the lower authority had relied on the Tribunal's decision in the case of Prabhat Zarda Factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maintaining records of the receipt and dispatch of goods and the stock available at the warehouse; (f) Preparing invoices on behalf of the principal." Therefore again in the above mentioned case, M/s. Prabhat Zarda Factory India Ltd. decision has been overruled. Therefore the order of the lower authority is not good and proper because he had relied on the decision which has been later overruled. As regards the impugned Order-in-Appeal, the Commissioner (Appeals) has simply stated that Mahavir Generics case (supra) has not been accepted by the department. That is not a correct approach. Moreover in terms of the Larger Bench decision in case of Larsen and Toubro Ltd. (supra), we find that the appellant would not be covered. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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