TaxTMI 
TaxTMI 
2019 (7) TMI 327
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....s filed by the appellant and upheld the Order-in-Original. The details of both the refund claims are given herein below: SI. No. Provisional Assessment Order No. Period covered Amount claimed as refund 1. 01/2016 dated 01.01.2016 01.12.2015 to 31.05.2016 Rs. 20,93,285/- 2. 02/2016 dated 27.05.2016 01.06.2016 to 30.11.2016 Rs. 10,74,030/- 2. Briefly the facts of the present case are that the appellants are engaged in the manufacture of Asbestos Cement products covered under Chapter Sub Headings 68111000, 68114010 and 68114090 of CETA, 1985. The appellant has been paying duty in terms of valuation under Section 4 in regard to sales made by them to their dealers (customers) who in turn sell the final prod....
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....ellant filed refund claims in regard to two periods after such finalization of provisional assessment. As per the finalization of provisional assessment, the appellants were held entitled to refund of the disputed amount along with interest. However, another adjudication was made in regard to the refund claims, without issuance of SCN and adjudication order passed holding that the appellant was not entitled to refund in terms of the OIO dated 30.11.2017 and both the refund claims were rejected by the original authority. Aggrieved by the order rejecting refund, the appellant filed two appeals before the Commissioner (Appeals) and the Commissioner (Appeals) vide the impugned order dismissed both the appeals by holding that the appellant is no....
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....The appellant has relied upon the following decisions wherein the Hon'ble Apex Court has consistently held that when previous orders have not been challenged by the Department and have attained finality, then the Department is prevented from taking a contrary stand subsequently: • Birla Corporation Ltd. Vs CCE, 2005 (186) ELT 266 (SC). • CCE Vs Bigen Industries Ltd., 2006 (197) ELT 305 (SC). • Indian Oil Corporation Ltd. Vs CCE, 2006 (202) ELT 37 (SC). • Marsons Fan Industries Vs CCE, 2008 (225) ELT 334 (SC). • CCE Vs Flock (India) Pvt. Ltd., 2000 (120) ELT 285 (SC). 4.1. He further submitted that these decisions of the Hon'ble Apex Court has been followed recently by this ....
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.... (b) The said decision could not have been applied adversely to the appellant because the orders finalizing provisional assessment had explicitly recorded findings of the fact holding that there was excess payment of duty; that credit notes had been furnished; Chartered Accountant certificate was produced; that duty paid in excess was liable to be refunded and admissible as per the Addision & Co. judgment. (c) The decision in Addision & Co. (supra) squarely applied to the case of the present appellant insofar as the findings in Paras-35 onwards of the reported judgment since, the appellant has demonstrated from the provisional assessment orders and the findings therein as also during adjudication that credit notes had been issued, ....
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....r authority that there was a Chartered Accountant certificate on record. 5. On the other hand, learned AR defended the impugned order. 6. After considering the submissions of both the parties and perusal of the material on record, I find that in the present case, the appellants were clearing the goods to their dealers from the factory gate and were paying the duty on the prevalent prices and later on the appellant issued the credit notes to the dealers which resulted into payment of excess duty by the appellant while clearing the goods from the factory gate. Further, I find that the appellants were permitted to clear the goods on provisional assessment under Rule 7 of the Central Excise Rules for the disputed period. Subsequently, the....
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....cuments and also relying upon the decision of the Hon'ble Apex Court in the case of Addision & Co. The appellant filed appeal before the Commissioner (Appeals) who also rejected the same by referring only to the decision of the Hon'ble Apex Court in the case of Addision & Co. Further, I note that once the Revenue has not challenged the order of finalizing provisional assessment then it cannot reject the refund claim without issuing proper SCN. Further, in the appellant's own case, the Mumbai Tribunal has allowed the refund claim after the decision of the Hon'ble Apex Court in the case of Addision & Co. Further, I note that the Commissioner (Appeals) has mis-interpreted the ratio of the decision of the Hon'ble Apex Court in the case of Addis....