TaxTMI 
TaxTMI 
2026 (1) TMI 565
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.... them imposed penalty of like amount without authority of law, which, in any case, must needs setting aside, is not only 'most peculiar', to borrow a description from the song of Simon and Garfunkel, but also as discordant as '....and the clocks were striking thirteen' in George Orwell's 1984. A brief outline of the labyrinthine passage in the travel of the dispute to the Tribunal, and not just once but twice, would surely be of no small assistance in unravelling the conceptual commotion that keeps thrusting its disagreeable presence. 2. The appellant herein had, on 24th September 2009, preferred three claims for refund of Rs.85,82,969, accumulated as CENVAT credit, and, being attributable to 'inputs' and 'input services' deployed in manufacture of goods exported during three quarters between October 2008 to June 2009, entitled to be monetized by the facility in rule 5 of CENVAT Credit Rules, 2004. The claims were allowed by the competent authority in order dated 21st December 2009 which, upon review empowered by section 35D of Central Excise Act, 1944, was reversed by order dated 25th November 2010 disposing off appeal before Commissioner of Central Excise (Appeals)....
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....izing or discretion to 'write off' of either. Moreover, integrity of judicial determination rests upon the foundation of principle of comity of courts which not only binds subordinate courts to decisions of superior courts but, concomitantly, also prescribes exclusive hierarchy of appellate remedy bereft of which exercise of overlapping jurisdiction will be cause of judicial chaos. That the two jurisdictions have converged on the same outcome is happenstance and, that too, only because the conclusion of adjudicating authority has relied entirely on the findings of appellate authority. One of the two proceedings is one too many and credibility of proceedings before the Tribunal warrants extinguishment of one; in the circumstances, extinguishment of any one of both is of no prejudice to the interests of the exchequer. 4. We do not foray onto the complexity involved in determining the scope of empowerment to review sanction of refund solely by arithmetical derivation and lacking touchstone of show cause notice proposing, while setting out grounds for, rejection by way of ineligibility. Neither side has sought our intervention with that as ground for upholding or setting aside the o....
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....ery but a process of determining 'debt' owed to the sovereign; appellate determination also does the same. We need not go beyond observing that an order of appellate authority does not require separate adjudication proceedings to sanctify consequential recovery. We merely set out to eliminate the extraneous which, from exposition supra, is the order of Commissioner of Central Excise. 6. The principle of 'first strike' in overlap of jurisdictions excludes further life support for the order of Commissioner of Central Excise in the outlined circumstances. There is nothing original in the findings therein. It militates against the principle of uninfluenced outcome in adjudicatory proceedings as well as inappropriateness of 'poaching' upon facts that were before any other authority at the same time. Most importantly, it is the lack of prejudice to the interests of the public exchequer in setting aside the order of Commissioner of Central Excise -- an undertaking bereft of application of mind - that weighs uppermost with us. Having done so, we proceed, uncluttered and unhandicapped, to consider the order of first appellate authority on the correctness of having upheld the ineligibilit....
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....es i.e. Maximum Refund amount = Total Net CENVAT credit taken on input services during the given period x Export turnover/Total turnover ..... Explanation: For the purposes of condition no. 5, - 1. "Export turnover" shall mean the sum total of the value of final products and output services exported during the given period in respect of which the exporter claims the facility of refund under this rule 2. "Total turnover" means the sum total of the value of (a) all output services and exempted services provided, including value of services exported; (b) all excisable and non-excisable goods cleared, including the value of goods exported; (c) The value of bought out goods sold during the given period.' 8. Learned Counsel submitted that it was evident from the balance remaining as credit at the end of each month that the refund claimed, being below the accumulated credit, was not utilizable for clearance of goods domestically. 9. Learned Authorized Representative contended that the stipulation in rule 5 of CENVAT Credit Rules, 2004, as well as in the attendant notification, did mandate monetization of credit as onl....