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TMI Blog2024 (6) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... lant unit has already been adjudicated by the Ld. Commissioner of Central Excise in COMMR. OF C. EX., DIBRUGARH VERSUS HINDUSTAN COCA COLA BEVERAGES (P) LTD. [ 2005 (1) TMI 504 - CESTAT, KOLKATA] , against which the Revenue filed an appeal before this Tribunal. This Tribunal vide order dated 20th January, 2005, rejected the appeal of the Revenue. Therefore, raising the issue of substantial expansion again by the Ld. Commissioner (Appeal) is bad in law which has attained finality. In the impugned order, the Ld. Commissioner (Appeals) has gone beyond the scope of the appeal and held that the appellant has not fulfilled the condition of substantial expansion. It is observed that this issue was not before the Ld. Commissioner (Appeals). The iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1999 till July 2009. 2.1. As per the Notification, the appellant was eligible for refund of the duty paid in PLA. The Appellant filed their first refund claim before the jurisdictional Assistant Commissioner, who vide order dated 02.12.1999 granted the provisional refund. 3. Thereafter, an enquiry was conducted by the Anti- Evasion Unit, Central Excise, Shillong wherein it was alleged that the Appellant had wrongly availed the benefit of the aforesaid exemption notification on account of the following three specific reasons: (i) Suppression of Facts; (ii) No expansion of critical machineries related to the installed capacity; (iii) Wrong assessment of the installed capacity 3.1. Based on the aforesaid allegations, a Show Cause Notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund amounting to Rs. 15,04,35,465/- sanctioned to the Appellant for the period from July 1999 to November 2002. The Commissioner of Central Excise, Dibrugarh relied upon the aforesaid decision of the CESTAT adjudicated the second Show Cause Notice by dropping the proceedings vide Order-in-Original No. 03/COMMR/CH-22/ADJ/DIB/2006 dated 28.02.2006. Department's appeal [E/228/2007] against this order was rejected by Tribunal vide Final Order FO/76146/2018 pronounced in Court on 13.03.2018. 5. The Department continued to raise periodical Show Cause Notices to the Appellant on the issue in dispute on the very same repetitive grounds as taken in previous Show Cause Notices. 5.1. The present appeal is related to erroneous refund of Rs.39,22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not before the Commissioner (Appeals). The issue before the Ld. Commissioner (Appeals) was erroneous refund sanctioned to the appellant for the period in dispute. However, the Ld. Commissioner (Appeals) has decided the issue of substantial expansion which was not there before him. The issue of substantial expansion has already been decided for the unit in the Tribunal orders cited above. Accordingly, he submit that the same issue against the same unit cannot be raised again, which is against the principle of res judicata. Accordingly, he prayed for setting aside the impugned order and allowing their appeal. 7. The Ld. Authorized Representative for the Revenue reiterated the findings in the impugned order. 8. Heard both sides and perused th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue is no more res-integra as the Tribunal has already decided the same issue of the appellant for the earlier periods in their favour in the following decisions of this Tribunal: (i) CCE Vs HCCBPL, 2005(186) ELT 242 (Tri-Kolkata) (ii) CCE Vs HCCBPL, 2004 (169) ELT 152 ( Tri-Kolkata) (iii) CCE Vs HCCBPL, 2018 (7) TMI 322 - CESTAT Kolkata. 9.3. We observe that all the orders of the Tribunal cited above categorically held that the appellant has fulfilled the condition of substantial expansion of the unit as required under the Notification No. 33/99-CE and allowed the refund of duty paid in PLA for the earlier period. In the impugned order, the Ld. Commissioner (Appeals) has gone beyond the scope of the appeal and held that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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