TaxTMI 
TaxTMI 
2026 (9) TMI 1375
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....0.05.2005 for the period 2004 to 2005 under Rule 5 of the Cenvat Credit Rules, 2004 (CCR). 3. The claim was rejected in entirety by Order in Original No.6/2006 dated 29.05.2006, for want of proof of export such as the bill of lading or a customs certified export application, non fulfilment of Notification No.11/2002 CE (NT) dated 01.03.2002, for want of the input output ratio, time bar for the period 01.04.2004 to 15.06.2004, and simultaneous availment of duty drawback under the Customs and Central Excise Duties Drawback Rules, 1995. 4. On an appeal preferred by the appellant, the Appellate Authority, vide Order in Appeal No.72/2007 (M IV) dated 28.06.2007 held Rs.9,03,190/- ineligible as claimed on erroneous input documents, remanded the balance for verification, found the plea of unjust enrichment premature, held the period 01.06.2004 to 15.06.2004 not time barred, and, relying on Chandrapur Magnet Wires (P) Ltd. v. Collector of Central Excise, Nagpur, 1996 (81) ELT 3 (SC), held that full repayment of drawback restored the appellant to the position of one who had never availed it, so that refund remained available, subject to verification of the repayment. The department di....
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....specific finding on the input output ratio, of proof that the exports were manufactured from Cenvat availed rather than CT 2 procured inputs, of fulfilment of Notification No.11/2002 CE (NT), of a distinction between duty suffered and non duty suffered material, and of a one to one, item wise correlation, and independently for the drawback availment. 8. Aggrieved, the appellant came in appeal before this Tribunal contending that the Range report was not exposed to the appellant for rebuttal. This Tribunal, by Final Order No.40594/2015 dated 29.05.2015, set aside Order in Appeal No.2/2010 on the ground that the Range Officer's report had not been furnished to the appellant for rebuttal, and remanded the matter to the first Appellate Authority for fresh decision after doing so. 9. The report was accordingly furnished and cross objections filed. The impugned Order in Appeal No.181/2016 (CXA II)(D) dated 30.04.2016 read with corrigendum dated 06.09.2016 nevertheless upheld the appeal filed by the Department, reiterating the same deficiencies, and declined to treat the drawback finding in Order in Appeal No.72/2007 as concluded, on the reasoning that a remand order need not be....
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.... Range Officer had since verified purchase orders, designs, input documents and export documents and found them in order barring two minor instances of short shipment. He urged that the department's appeal against Order in Original No.1/2008 merely reproduced the findings of the already rejected Order in Original No.6/2006, without regard to this intervening verification. 13. On the drawback objection, Learned Counsel maintained that the question stood concluded by Order in Appeal No.72/2007, which applied Chandrapur Magnet Wires to hold that full repayment of drawback restores the assessee to the position of one who never availed it. Since the department never appealed that order, he contended, the Commissioner (Appeals) could not reopen the question merely because Order in Appeal No.72/2007 happened to be a remand order, particularly when the Range Officer had himself verified and accepted the repayment. 14. Ld. Counsel further contended that that adjudicating and confirming recovery while the correctness of treating the refund as erroneous was itself pending before this Tribunal served no purpose beyond multiplying proceedings, the demand having no independent legs onc....
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....ential effect requires to be given to Final Order No.1214/2009 in respect of Rs.9,03,190/- ? d) Whether the Deputy Commissioner and, in turn, the Commissioner (Appeals) in Order in Appeal No.85/2018 erred in declining to keep the recovery proceeding in abeyance pending disposal of Excise Appeal No.41670 of 2016? 19. On the first issue, it is noticed that the position is settled against the department. In Motherson Sumi, the Karnataka High Court affirmed that an assessee claiming refund of accumulated Cenvat credit under Rule 5, read with Notification No.11/2002 CE (NT), need not establish a direct, one to one correlation between duty paid inputs and the goods actually exported, it being sufficient that the inputs were used in the manufacture of goods that were in fact exported and that the credit had, in consequence, become incapable of utilisation. In Vardhman Spinning, the Tribunal reiterated that neither the rule nor the governing circular requires separate records of exclusive use, and that refund cannot be denied on that ground. 20. Tested against this position, the deficiencies on which Order in Appeal No.181/2016 rests are premised on a demand for the kind of ....
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....recorded at an earlier stage and not carried further binds the parties at later stages of the same lis, though a superior forum properly seized of the matter remains free to test its correctness. This principle, applied in Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941, was reaffirmed recently in Kishorilal (Dead) through LRs v. Gopal, 2026 INSC 48, where it was held that once a court has taken a view at one stage, it is not open to revisit that view at a later stage of the same proceeding. 23. The reasoning in Order in Appeal No.181/2016, that Order in Appeal No.72/2007 being a remand order carried no obligation on the department to appeal and therefore left the drawback question perpetually open, does not, align with the aforesaid Judgement. The appealability of an order as a whole is distinct from the finality of a specific finding within it. Order in Appeal No.72/2007 remanded only the documentary verification of quantum; it did not remand, and was not treated by either side at the time as leaving open, the separate legal question whether repayment of drawback removed the bar under Rule 5. That question was answered in the appellant's favour, and the department, hav....