TaxTMI 
TaxTMI 
2017 (4) TMI 1167
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....o incidence of duty is passed on by the Appellant? (C) Whether the Appellate Tribunal was justified in ignoring evidences produced before them being a last fact finding authority and especially when error apparent on record was pointed out? (D) Whether the appellant was justified in summarily rejection of rectification of mistake when error apparent on record was specifically pointed out? The present Tax Appeal has a chequered history. [2.0] The facts leading to the present Tax Appeal in nutshell are as under; [2.1] The Assistant Commissioner, Vadodara vide Orderin- Original No.D/23/98 dated 23/03/1998 rejected the modvat credit amounting to Rs. 1,50,76,569/- for the period September, 1997 to January, 1998. The appellant - assessee paid Rs. 1,50,76,569/- vide TR-6 Challan No.1 dated 31/031998 under the protest as per provisions of Section 35F of the Central Excise Act, 1944 (hereinafter referred to as "the Act") The appellant - assessee filed Appeal before the Commissioner (Appeals) who vide OIA No. Commr. (A) 909/VDR/98 dated 29/10/1998 rejected the Appeal of the assessee. Feeling aggrieved and dissatisfied by the Order-In-Appeal, assessee preferred Appeal before th....
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....'ble Supreme Court in the case of Solar Pesticides Ltd. (Supra). Thereafter, the learned tribunal decided the Appeal and remanded the case to the Assistant Commissioner /Deputy Commissioner for determining whether the assessee had passed the burden to their customers in light of the evidence to be placed before him by the importer by order dated 14/06/2004. Thereafter, the appellant - assessee filed Charted Accountant Certificate to justify that the appellant - assessee had not passed on the incidence of duty. It was also pointed out that in case of erroneous refund, notice under Section 11A of the Central Excise Act (hereinafter referred to as "the Act") was required /necessary, which was not issued. The adjudicating authority by its OIO No. Refund/106/2004 dated 17/12/2004 rejected the claim and discarded the submission of notice under Section 11A of the Act. Feeling aggrieved and dissatisfied with the OIO No.106/2004 dated 17/12/2004, the assessee approached the first appellate authority by way of Appeal, which came to be rejected under OIA No.Commr. (A)/074/VDR-I/2005 dated 07/03/2005. Feeling aggrieved and dissatisfied with the order passed by the first appellate authority dat....
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....ith the same. It is submitted that therefore when the same was pointed out to the learned tribunal by way of rectification application, again the learned tribunal has not dealt with the same. It is submitted that once the submissions were made on a particular issue and /or grounds were raised, the same was required to be dealt with by the learned tribunal. It is submitted that the norm consideration of the grounds canvased can be said to be an error apparent on record, and therefore, the learned tribunal ought to have allowed the rectification application. In support of the above submissions, Shri Dhaval Shah, learned advocate appearing behalf of the appellant has heavily relied upon the decision of the Division Bench of this Court in the case of SCI International Securities Ltd. Vs. Commissioner of Central Excise and Service Tax, Vadodara rendered in Tax Appeal No.886/2016. He has also relied upon the decision of the Madhya Pradesh High Court in the case of Choithram Hospital & Research Centre Vs. Union of India reported in 2008 (222) ELT 188 (M.P.) as well as another decision of the Division Bench of this Court in the case of Commissioner of Central Excise and Customs, Valsad Vs.....
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....the entire material is available with us in the form of paper book produced by the learned advocate appearing on behalf of the appellant - assessee, we have though it fit to consider the issue with respect to the notice under Section 11A of the Act by ourselves. It is the case on behalf of the appellant - assessee that in case of erroeneous refund, before making any recovery, notice under Section 11A of the Act is required. However, in the facts and circumstances of the case, we are of the opinion that Section 11A of the Act shall not be applicable to the facts of the case on hand. In the present case, recovery of refund had arisen because of the order passed by the learned appellate authority. In the present case, the appellant - assessee submitted six refund claims under Section 11B of the Act. The adjudicating authority allowed the said claims and ordered to refund the amount paid in excess. The first appellate authority dismissed the Appeal preferred by the revenue. However, in Appeal, the learned tribunal set aside the order of refund, and therefore, necessity of recovery of the amount already paid, pursuant to the Order- In-Original passed in the refund application had arisen....
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....vernment to the extent that while fixing the price of fertilizers the Government had taken into account the duty on methane or not, it is submitted that as such earlier the remand order passed by the learned tribunal in the year 2005 was an open remand, and therefore, the adjudicating authority was required to consider the Chartered Accountant Certificate produced by the appellant - assessee, and therefore, the adjudicating authority ought to have considered the Chartered Accountant Certificate is concerned, at the outset, it is required to be noted that earlier the appellant - assessee produced the Chartered Accountant Certificate, however, the same was not considered sufficient by the adjudicating authority and the first appellate authority. In Appeal, it was submitted on behalf of the appellant - assessee that they are ready and willing to produce the certificate issued by the Government to the effect that the duty on methane was taken into account while fixing the price of fertilizers, and therefore, the learned tribunal while passing the order dated 24/05/2005 remanded the matter to the adjudicating authority by giving an additional opportunity to the appellant - assessee to p....