TaxTMI 
TaxTMI 
2017 (6) TMI 572
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....Act, 1985, appellants had filed fresh classification list for 20 items including the above mentioned items. The period of dispute is between 1.4.1986 and 29.2.1988. Department took a view that the aforesaid items were excisable and hence issued four show cause notices for the period covering 1.4.1986 to 29.2.1988, inter alia, proposing demands of Central Excise differential duty. After due process of adjudication, the original authority vide Order-in-Original dated 29.11.2011 dropped further proceedings initiated in the aforesaid show cause notices. Consequently, three refund claims were filed by the appellants as follows:- (a) For Rs. 2,18,943.12 relating to duty paid on the said goods cleared during the period 10.2.1978 to 30.6.1....
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....hat the Rule of per incuriam can be applied where an adjudicating authority omits to consider the decision rendered by the superior forum inadvertently. In that case, the appellants cannot insist for grant of refund based on that order. Neither the finding of the lower authority is clear nor the appellants presented their case precisely so as to decide the issue properly. Under such circumstances, the impugned orders are set aside and the lower authority is directed to decide the issue afresh on merits giving clear findings on the claims of the appellants. The case laws submitted by the appellants about the change in stand of Tribunal / Court in extending the SSI exemption to the Corporations / Government undertakings shal....
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....d filed refund claims, in para 2 of that order had referred to Order-in-Appeal No. 74/84 dated 5.6.1984 of Collector (Appeals), inter alia, holding the items viz. stay rods, T cross arms and clamps as not excisable. Ld. AR contends that the adjudicating authority had not taken note of the fact that the said order, on appeal, had been decided by the Tribunal in favour of the department by upholding the dutiability of the said items. Ld. AR argues that since the Tribunal vide order dated 18.4.1991 had clearly held that the said goods were excisable, the decision thereof would be final and fully applicable to the appellants. He submits that the said adjudicating authority should have placed reliance on the CEGAT Chennai's order dated 18.4.....
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....ala State Electricity Board Vs. Commissioner of Central Excise, Cochin as reported in 2001 (133) ELT 104 (Tri. Bang. ). 6.5 Even if the department had been aggrieved with the said order dated 29.11.2011 of the said adjudicating authority, nothing prevented them for having gone in appeal against the said order. This was certainly not done. In consequence, the order dated 29.11.2011 of the Assistant Commissioner holding that the stay rods, LT cross arms, clamps are non-excisable and that transformer structure materials though excisable are however eligible for exemption under SSI Notification No.175/86-CE will become final and binding on both the assessees as well as the department. 6.6 This being so, the assessee cannot be deprived of ....