2023 (7) TMI 579 - AT - Central Excise

Commissioner's decision on duty refund claim set aside, Department's attempt to reopen Tribunal's order impermissible. Upheld judicial discipline.

The impugned order dated 15.07.2022, challenging the Commissioner (Appeals)'s decision on a refund claim for excess duty payment, was set aside. The ... Violation of judicial discipline - reopening and review of previous Tribunal Order for subsequent period - while the accepting the order of tribunal for the earlier periods, SCN issued for the subsequent period involving the same issue - recovery of erroneous refund - whether the Department can reopen and review the order of the Tribunal, by way of a show cause notice on the grounds that refund granted was erroneous, where no appeal was filed against the order of the Tribunal? HELD 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. This is clearly against the principles of judicial discipline. In case, the protective demand was issued before the finalization of the appeal by CESTAT, it was within the permissible limits of the Department to withdraw the same. It is found that the Original Authority vide OIO No.25-35/2020 dated 21.09.2020 has rightly discharged the same - Commissioner (Appeals) cannot sit in judgment of the Tribunal’s order and to hold the same to be issued “per incuriam”, whereas no appeal has been filed against the CESTAT Order and an appeal filed earlier on a case involving identical issue was withdrawn on monetary grounds. It is curious to note that whereas some 10 to 12 orders were passed on the issue against the very same appellant covering the periods before and after the period covered in the impugned order. The Revenue contends that there is no “estoppel” in Revenue’s matter. Maybe it so, it’s not open to the Department to open up a case which attained finality. In passing an order contrary to the order of the CESTAT and holding that the CESTAT order was “per incuriam”, learned Commissioner (Appeals) has exceeded his brief. Moreover, in the instant case, it is found that the Department has followed ‘pick and choose’ method making a joke of the judicial process and putting the appellant to unwarranted hardship by refraining from appealing past and future cases and selecting only case for review. The finding of the Commissioner as regards the applicability of the provisions of Section 11B to the facts of the case are incorrect and are as a result of incoherent reading of the provisions of the statute. The impugned order is set aside and the appeal is allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the Revenue can reopen and seek recovery by issuance of a show cause notice against a refund which was allowed by a Tribunal order that was not appealed and thereby attained finality. 2. Whether a Commissioner (Appeals) is entitled to treat a binding Tribunal order as 'per incuriam' and substitute his view for that of the Tribunal where no appeal against the Tribunal order was filed by the Revenue. 3. Whether the provisos of Section 11B (refund of duty where duty has been borne by a buyer who has not passed on the burden) apply so as to entitle the recipient/buyer to a refund where the buyer paid duty only on actual quantity received and the supplier had invoiced a larger quantity. 4. Whether selective initiation or continuation of recovery/appeal proceedings in some identical matters while withdrawing or not pursuing others is permissible and consistent with judicial discipline and the principle of finality. ISSUE-WISE DETAILED ANALYSIS Issue 1: Reopening and recovery against a refund allowed by an unchallenged Tribunal order Legal framework: Administrative power to recover erroneously refunded duty may be exercised where a refund is shown to be erroneous; however finality of judicial decisions and principles of judicial discipline restrain executive re-litigation of issues finally determined by a Tribunal when no further appeal is pursued. Precedent Treatment: The Tribunal's prior orders on identical facts were treated as binding and were followed by the Original Authority in sanctioning refund. A subsequent Tribunal order rejecting Revenue's appeal attained finality because no appeal was filed against it. Interpretation and reasoning: Where a Tribunal order attained finality by non-challenge, implementing authorities must respect the finality. Issuing a show cause notice to recover refunds granted pursuant to such final orders constitutes reopening by the 'back door' and undermines judicial discipline. Protective demands issued before final adjudication may be permissible, but once a Tribunal order is final, reopening without a proper appellate process is impermissible. Ratio vs. Obiter: Ratio - Administrative recovery cannot be pursued in a manner that nullifies an unchallenged Tribunal order; protective demands before finality are permissible but cannot substitute for appellate process after finality. Obiter - Comments on administrative propriety of protective demands and timing. Conclusion: Reopening and recovery by issuance of a show cause notice against a refund allowed by an unappealed Tribunal order is impermissible; the Original Authority's discharge of the show cause notice was correct. Issue 2: Whether Commissioner (Appeals) may declare a Tribunal order 'per incuriam' and overturn it absent a higher appellate challenge Legal framework: The doctrine of per incuriam applies where a decision is given in ignorance of a relevant statutory provision or binding precedent; ordinarily only a court of competent jurisdiction or the same Tribunal sitting in appropriate review proceedings may revisit its own decision; lower appellate authorities are constrained from declaring higher or coordinate Tribunal decisions per incuriam in the absence of a higher appellate adjudication. Precedent Treatment: Tribunal had repeatedly decided the issue on merits in favor of refund eligibility; no appeal was filed against the last Tribunal order. A previously filed appeal was dismissed as withdrawn by the High Court on monetary grounds. Interpretation and reasoning: A Commissioner (Appeals) cannot sit in judgment over a Tribunal's order and hold it per incuriam where Revenue chose not to appeal the Tribunal order; to treat a final Tribunal order as per incuriam effectively circumvents appellate process and breaches judicial discipline. Selective criticisms of Tribunal reasoning by a lower authority, when the Tribunal's order is unchallenged, amount to excess of jurisdiction and undermine finality. Ratio vs. Obiter: Ratio - A Commissioner (Appeals) exceeds jurisdiction by declaring a binding Tribunal order per incuriam and reversing outcomes on that ground where the order was not appealed. Obiter - Observations regarding 'pick and choose' conduct of Revenue. Conclusion: The finding of per incuriam by the Commissioner (Appeals) and resultant reversal of the Tribunal's position was beyond competence and unsustainable; such a conclusion cannot stand without appropriate appellate review. Issue 3: Applicability of Section 11B to refund claims where buyer bore duty on actual quantity received Legal framework: Section 11B provides for refund of duty where the duty has been paid or borne by a buyer who has not passed on the burden; eligibility depends on the factual matrix showing burden borne and non-passing on the burden. Precedent Treatment: The Tribunal had examined and decided the applicability of Section 11B on merits in earlier orders, concluding entitlement to refund where buyer bore duty on actual quantity received and CENVAT credit was availed only on the received quantity. Interpretation and reasoning: A plain reading of Section 11B shows that refund is permissible to a buyer who bore the duty and did not pass it on. Here the receiver paid duty only on the quantity actually received and availed credit on that basis; the supplier's invoiced excess quantity did not result in duty borne by the buyer for those quantities. The Commissioner (Appeals)'s contrary statutory interpretation was found to be incoherent and inconsistent with the Tribunal's considered reasoning. Ratio vs. Obiter: Ratio - Where the buyer has borne the duty and not passed on the burden, Section 11B entitles refund; prior Tribunal decisions applying Section 11B to identical facts are binding on implementing authorities unless set aside by a higher forum. Obiter - Critique of statutory reading by the Commissioner (Appeals). Conclusion: The Commissioner (Appeals)'s conclusion on inapplicability of Section 11B was erroneous; Tribunal's prior decisions correctly applied Section 11B and support refund entitlement. Issue 4: Legitimacy of selective litigation and the principle of finality/judicial discipline Legal framework: Principles of finality and judicial discipline require consistent adherence to judicial orders and prohibit arbitrary re-opening of matters that have attained finality; administrative authorities must not adopt selective approaches that undermine equitable treatment. Precedent Treatment: Multiple Tribunal orders on identical issues in favor of refund existed across periods both before and after the period covered by the impugned order; some appeals by Revenue were withdrawn on monetary grounds while others were pursued selectively. Interpretation and reasoning: Revenue's selective pursuit (or withdrawal) of appeals and selective reopening of decided matters creates inconsistency and subjects parties to unwarranted hardship; while Revenue may have legal rights to appeal particular orders, it cannot choose inconsistent litigation strategies that effectively nullify final orders in individual cases. Such conduct makes a 'joke of the judicial process' and is contrary to principles of even-handed administration of justice. Ratio vs. Obiter: Ratio - Selective reopening or review that undermines final Tribunal orders and places a taxpayer to arbitrary hardship is impermissible; authorities must respect finality and uniform application. Obiter - Observations on Revenue's tactics and estoppel contentions. Conclusion: The Revenue's selective conduct and attempts to reopen final orders were improper; the impugned order based on such selective review must be quashed. Overall Disposition Conclusions synthesized: The impugned appellate order reversing the Original Authority and declaring the Tribunal's final order per incuriam was unsustainable. The discharge of the show cause notice by the Original Authority was correct. The Tribunal's prior merits-based findings applying Section 11B remain binding. The impugned order is set aside and consequential relief granted as per law.