2007 (4) TMI 572 - AT - Central Excise

Tribunal sets aside order, remands for fresh decision.

The Tribunal set aside the impugned order and remanded the matter to the original adjudicating authority for a fresh decision in line with the ... Refund - Production capacity based duty Issues:1. Entitlement to refund duty based on the order of Dy. Commissioner and subsequent appeals.2. Rejection of refund claim by authorities based on finality of earlier orders.3. Applicability of Tribunal's order on ACP and subsequent refund claim.Analysis:Issue 1: Entitlement to refund duty based on the order of Dy. Commissioner and subsequent appealsThe appellant, engaged in the manufacture of processed MMF fabrics, filed a declaration for fixation of annual production capacity (ACP) under Rule 962ZQ of Central Excise Rules, 1944. The Dy. Commissioner initially fixed the ACP by adding the length of galleries, which was challenged by the appellant before the Commissioner (Appeals). The Commissioner (Appeals) allowed the appeal, holding that the length of galleries should not be added. The Revenue appealed against this decision before CEGAT, which dismissed the appeal, upholding the order of Commissioner (Appeals). Consequently, the appellant became entitled to a refund of duty paid during a specific period, leading to the filing of a refund claim.Issue 2: Rejection of refund claim by authorities based on finality of earlier ordersDespite the entitlement to a refund based on the Tribunal's decision on the ACP issue, the authorities rejected the refund claim. They argued that the earlier orders of the Dy. Commissioner and Commissioner (Appeals) rejecting the refund claim had attained finality. The authorities contended that the subsequent refund claim could not be entertained a second time, as the earlier rejection was not challenged further by the appellant.Issue 3: Applicability of Tribunal's order on ACP and subsequent refund claimThe Tribunal, after considering the arguments from both sides, acknowledged the principle that an unchallenged order attains finality. However, the Tribunal referred to a recent decision of the Mumbai High Court, emphasizing that even if the correctness of the ACP was not challenged, the law declared by the Supreme Court regarding the inclusion of length of galleries in determining chambers should be considered. In this case, the ACP was challenged by the appellant and decided in their favor by the Tribunal. Therefore, the Tribunal concluded that the ACP needed to be re-fixed based on its decision, and any consequent demand or refund should be confirmed or refunded accordingly.In conclusion, the Tribunal set aside the impugned order and remanded the matter to the original adjudicating authority for a fresh decision in line with the observations made, particularly considering the Mumbai High Court judgment and the Tribunal's decision on the ACP issue.