No Appeal can be Filed against CESTAT Order which was Withdrawn on Monetary Grounds: CESTAT [Read Order]

The Hyderabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that no appeal can be filed against the order of CESTAT which was withdrawn on monetary grounds. 

Andhra Sugars Limited, the appellant assessee filed a refund claim before the Assistant Commissioner for the reason quantity of caustic soda lye supplied to NALCO company was less than the invoiced quantity and therefore, there was excess payment of duty. 

The assessee appealed against the order passed by the Commissioner (Appeals) for finding that the previous decision of the Tribunal was “per incuriam”. 

Mohd. Rahim, the counsel for the assessee contended that by applying the provisions of section 11B of the Central Excise Act, 1944 the assessee is eligible for a refund. 

Further submitted that the department was resorting to multiple reviews against the same cause of action, which was not permissible under the law. 

A. Rangadham, the counsel for the department contended that the non-filing of appeal in one case was no bar to file in another case. 

The bench observed that the Commissioner (Appeals) cannot sit in judgment of the Tribunal’s order and hold the same to be issued “per incuriam”, whereas no appeal had been filed against the CESTAT Order and an appeal filed earlier on a case involving identical issue was withdrawn on monetary grounds. 

Also observed that the Tribunal’s order which attained the finality by not filing an appeal was not implemented in spirit and a review process has been initiated through the back door by issuance of a show cause notice and was clearly against the principles of judicial discipline. 

A single-member bench comprising Anjani Kumar (Technical) held that the Commissioner as regards the applicability of the provisions of section 11B of the Central Excise Act to the facts of the case are incorrect and as a result of incoherent reading of the provisions of the statute and quashed the order while allowing the appeal filed by the assessee. 

To Read the full text of the Order CLICK HERE

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