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TMI Blog2024 (4) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... nd claim observing that the exports have happened prior to 06.10.2007 (the date of notification) and therefore the appellant is not eligible for refund. 3. Against this, the appellant filed appeal before the Tribunal. As per Final Order No. 487/2011 dated 31.03.2011 the Tribunal remanded the matter with the directions to reconsider the issue. It was observed by the Tribunal that the decision in the case of GTN Engineering (I) Ltd. Vs CCE, Coimbatore - 2010 (256) ELT 625 (Tri.-Chennai) which held that the time period of one year prescribed under Section 11B was in regard refund of credit availed on inputs and capital goods only and not input services. This being refund of service tax, the Tribunal held that appellant would be eligible for refund as per Rule 5 of Cenvat Credit Rules, 2004 and the matter was remanded for reconsidering the eligibility of refund as per Rule 5 of CCR, 2004. 4. In such de novo adjudication, the original authority again rejected the refund holding that since the appellant has not availed cenvat credit, the refund is not eligible. It was also held by the original authority that as the export has taken place prior to 1.10.2007 is hit by limitation as the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore the appeal is allowed with consequential relief." 7. The Tribunal categorically held that the appellant is eligible for refund and allowed the appeal with consequential relief. 8. However, the adjudicating authority instead of sanctioning the refund, has again adjudicated the matter. The Assistant Commissioner, Erode I Division passed Order-in-Original dt. 04.02.2014 rejecting the refund holding that the refund claim is it by time bar and also that the appellant has not availed cenvat credit. The original authority took the view that the Final Order dt. 13.09.2013 passed by the Tribunal had not been accepted by the Department on merits and the same was accepted only on monetary grounds and therefore not final. 9. Against such order, the appellant filed appeal before the Commissioner (Appeals), Salem who, vide order impugned herein dt. 10.07.2014 interestingly, upheld the order of rejection of refund passed by the adjudicating authority. Aggrieved by such order, the appeal is once again before the Tribunal. 10. The Ld. Consultant Shri M. Saravanan appeared and argued for the appellant. It is submitted that the Tribunal vide Final Order dt. 13.09.2013 had allowed the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the earlier orders passed by Original Adjudicating Authorities / Appellate Authorities relating to the present Refund Claim. 08. I find that the present Refund Claim has been filed by M/s KKSK Leather Processors (P) Ltd., Erode consequent to the Final Order No.40379/2013 Dt. 13-09-2013 passed by Hon'ble CESTAT, Chennai. In the Final Order, the Hon'ble Tribunal has dealt with only the relevant date for filing the Refund Claim and has concluded that the claim is filed within the time-limit and the claimant is eligible for refund without going into the merits of the claim. 09. I also notice that the Commissioner of Central Excise, Salem has accepted the Final Order No.40379/2013 Dt. 13-09-2013 [In Appeal No.ST/667/2012-SM] passed by Hon'ble CESTAT, Chennai on the monetary grounds and not on merits of the case vide letter C.No.IV/02/100/2010-STR Dated 17-01-2014. In this regard, I find that CBEC has issued instructions vide letter F.No.390/Misc/163/2010 JC Dated 12-12-2013 in para 2 and has, inter-alia, stated the following : "2. Sub-Section 3 of Section 35R and Section 131BA provides that if an appeal has not been filed by the Department following instructions is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Service Tax Draw Back (Amendment) Rules, 2006; (III) The claim is hit by time-bar as Commissioner of Central Excise, Salem has not accepted the Final Order No. No.40379/2013 Dt. 13-09-2013 (In Appeal No.ST/667/2012-SM] passed by Hon'ble CESTAT, Chennai not on merits of the case but on the monetary grounds read with instructions issued by CBEC vide letter F.No.390/Misc/163/2010-JC Dated 12-12-2013. Accordingly, in view of the above discussion I pass the following Order: ORDER I therefore reject an amount of Rs.1,64,861/- (Rupees One Lakh Sixty Four Thousand Eight Hundred and Sixty One Only) under Section 11B of Central Act made applicable to Service Tax matters as per the Section 83 of Chapter V of the Finance Act, 1994." 15. It is held by the adjudicating authority that as the appellant has not availed cenvat credit and also the refund claim being time-barred, the appellant is not eligible for refund. Both the issues were thoroughly considered in the previous rounds of litigations and the Tribunal vide Final Order No.40379/2013 dated 13.09.2013 had held that the appellant is eligible for refund. Apart from this, it is also held that the said Final Order of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent to show cause why the product should not be classified under Heading 39.19. The assessee, in reply, pointed out that, in respect of its factory at Borivili, its claim that the goods were classifiable under Heading 85.46 and that Heading 39.19 had no application had been accepted by the Collector of Appeals. The Assistant Collector, however, did not accept the assessee's contention. He distinguished the order in respect of the Borivili plant on the ground that, there, the assessee's claim was for classification under Heading 85.46 and not 85.47. He held, by his order dated 4-1-1988, that the products in question fell under Heading 39.19. 2. The assessee preferred an appeal to the Collector (Appeals) who set aside the order of the Assistant Collector. He observed that reason given by the Assistant Collector for not following the order of the Collector of Central Excise (Appeals) on which the assessee had placed reliance before him was totally untenable. He set aside the order appealed against and directed the Assistant Collector to pass a reasoned and speaking order. 3. When the matter thus went back to the Assistant Collector he passed an order on 12-5-1989, reiterat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, if it was accepted, the Revenue would suffer. But what Sri Reddy overlooks is that we are not concerned here with the correctness or otherwise of their conclusion or of any factual mala fides but with the fact that the officers, in reaching their conclusion, by-passed two appellate orders in regard to the same issue which were placed before them, one of the Collector (Appeals) and the other of the Tribunal. The High Court has, in our view, rightly criticised this conduct of the Assistant Collectors and the harassment to the assessee caused by the failure of these officers to give effect to the orders of authorities higher to them in the appellate hierarchy. It cannot be too vehemently emphasised that it is of utmost importance that, in disposing of the quasi-judicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands of the same officer. He has only to bring the matter to the notice of the Board or the Collector so as to enable appropriate proceedings being taken under S. 35E(1) or (2) to keep the interests of the department alive. If the officer's view is the correct one, it will no doubt be finally upheld and the Revenue will get the duty, though after some delay which such procedure would entail. 8. We have dealt with this aspect at some length, because it has been suggested by the learned Additional Solicitor General that the observations made by the High Court, have been harsh on the officers. It is clear that the observations of the High Court, seemingly vehement, and apparently unpalatable to the Revenue, are only intended to curb a tendency in revenue matters which, if allowed to become widespread, could result in considerable harassment to the assessee-public without any benefit to the Revenue. We would like to say that the department should take these observations in the proper spirit. The observations of the High Court should be kept in mind in future and utmost regard should be paid by the adjudicating authorities and the appellate authorities to the requirements of judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preted the judgment of the Tribunal as being limited to striking down the demand of Rs. 12,62,95,889/-. Learned Counsel for the Revenue however vehemently contended that when there was no opposition to other demands in the reply filed to the show cause notice and when the appeal of the assessee was also confined only to the tax demand of Rs. 12,62,95,889/-, the judgment of the Tribunal must be seen in light of such facts. He may be right in pointing out that the assessee had not filed any grounds opposing these demands in the reply to the show cause notice and the prayer in the appeal memo is also limited to challenging the principal demand of Rs. 12,62,95,889/-. However it is not open for the subordinate authority to interpret the judgment of the superior Tribunal and bestow unto himself the powers to adjust the pre-deposit amount by coming to the conclusion that the order setting aside the order-in-original must be given limited effect. We are conscious that even in the judgment the Tribunal has not discussed any aspect of striking down the other two demands of Rs. 38,57,094/- and Rs. 3,96,954/-. Even in such circumstances it was the duty of the Deputy Commissioner to approach th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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