2000 (11) TMI 378 - AT - Central Excise

Remand granted for refund claim rejection by Collector of Central Excise. Appeal transferred to factory location for duty dispute.

The appeal was allowed by way of remand for re-consideration by the original authority regarding a refund claim rejection by the Collector of Central ... Refund claim - duty paid under protest - adjudication under Section 28 - requirement to examine refund grounds - refund claim in time - adjudication de novoRefund claim - duty paid under protest - requirement to examine refund grounds - refund claim in time - Whether a refund claim can be rejected solely because duty was paid under protest and a separate departmental order directing payment of duty was not appealed - HELD THAT: - The Tribunal accepted the appellant's contention that payment of duty under protest does not preclude adjudication of a timely refund claim on its merits. The authorities cannot refuse to examine the grounds urged in a refund application merely because the department has earlier issued an order directing payment of duty which was not separately appealed. So long as the refund claim is within time, all grounds raised in the refund claim must be considered by the original authority and adjudicated under the appropriate provisions, and the mere existence of an unanpealed departmental order does not bar consideration of the refund application. [Paras 4]The Tribunal held that the refund claim cannot be rejected solely on the ground that the departmental order was not challenged and that the grounds of refund must be examined if the claim is in time.Adjudication under Section 28 - adjudication de novo - Form of further proceedings required and relief to be granted to the appellant - HELD THAT: - After accepting that the refund claim requires examination, the Tribunal directed that the matter be remanded to the original authority for de novo consideration. The original authority is to issue notice, afford a hearing to the appellants, examine all grounds raised in the refund claim, and pass a detailed order disposing of the claim in accordance with law. The remand contemplates full adjudication of the refund application on merits under the statutory framework, subject to the claim being within time. [Paras 5]Matter remanded to the original authority for de novo consideration; original authority to call hearing, examine all grounds, and pass a detailed order.Final Conclusion: Appeal allowed by way of remand: the refund claim (for June-July' 89) is to be adjudicated on merits by the original authority de novo, after notice and hearing, provided the refund claim is within time. The appeal arose from a refund claim rejection by the Collector of Central Excise due to non-challenge of a previous order. The Calcutta Bench transferred the appeal to Chennai as the factory was located there. The appellants argued that duty was not payable, and the matter was remanded for re-consideration by the original authority. The appeal was allowed by way of remand.