Bombay High Court
The Commissioner Of Central ... vs M/S. Tube Investments Of India Ltd on 16 August, 2017
Bench: A.S. Oka
23-CEXA-189-06.doc
Sharayu.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CENTRAL EXCISE APPEAL NO. 189 OF 2006
The Commissioner of Central Excise,
Thane II, ...Appellant
Versus
M/s. Tube Investments of India Ltd. ...Respondent
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Ms. P.S. Cardozo, i/b Mr. Joel J. Carlos, for the Appellant.
Mr. V. Sridharan, Senior Advocate, a/w Mr. Prakash Shah & Mr.
Jas Sanghavi, i/b PDS Legal, for the Respondent.
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CORAM : ABHAY S. OKA AND
RIYAZ I. CHAGLA, JJ.
DATE : 16 August 2017
ORDER :
1. Heard the learned Counsel for the Appellant and the
learned Senior Counsel for the Respondent.
23-CEXA-189-06.doc
2. The Appellant has taken an exception to the
judgment and order dated 4 May 2005 passed by the Customs,
Excise and Service Tax Appellate Tribunal (for short "Appellate
Tribunal').
3. With a view to appreciate the submissions canvassed
across the bar, it will be necessary to make a reference to the
facts of the case in brief.
4. The refund claim in the sum of Rs. 1,84,270/- was
filed on 5 May 1995 on the basis of endorsement on the invoices
cum delivery challans. On the basis of the said claim, a
show cause notice dated 24 July 1995 was issued by the
Assistant Commissioner of Central Excise. A copy of show cause
notice is annexed at Exh.A to the Appeal. On 18 August 1995, an
Order-in-Original was made by the Assistant Commissioner, by
which the claim for refund made by the predecessor of the
Respondent was rejected by the Assistant Commissioner. Being
23-CEXA-189-06.doc
aggrieved by the said order, an Appeal was preferred by the
Respondent before the Commissioner. The said Appeal was
dismissed by the Commissioner of Central Excise (Appeals) by
his judgment and order dated 2 June 1998. Being aggrieved by
the said orders, the Respondent preferred an Appeal before the
Appellate Tribunal. The prayer made in the said Appeal read
thus :-
"(a) set aside the orders passed by the Commissioner
of Central Excise (Appeals) and sanction the
refund of Rs. 184270/- to the appellant."
5. By judgment and order dated 12 April 2003, the
Appeal was allowed by the Appellate Tribunal. The relevant part
of the judgment reads thus :-
"In the present case it is not disputed that credit was
taken on or before 30.06.1994. Applying the ratio
of the above decision I hold that Modvat credit
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under Rule 57A of the Central Excise Rules 1944
admissible to the appellants, set aside the impugned
order and allow appeal."
6. It appears that the second refund claim for the same
amount was filed by the Respondent on the basis of the order of
the Appellate Tribunal dated 12 April 2003. On the said
Application for refund, an order was passed by the Assistant
Commissioner, which reads thus :-
"I hereby allow Cenvat credit of Rs.
1,84,270/- (Rupees one Lac eighty four thousand
Two hundred seventy only) to M/s. Tube
Investments of India Ltd. Unit M/s. Press Metal
Corporation. They shall be allowed to utilize the
same in accordance with the Cenvat credit Rules,
2002."
7. Being aggrieved by the said order, an Appeal was
23-CEXA-189-06.doc
preferred by the Respondent before the Commissioner Central
Excise (Appeals), which came to be rejected. This is how the
matter was carried by way of an Appeal by the Respondent to
the Appellate Tribunal. By the impugned order, the Appellate
Tribunal directed the Department to refund the amount of Rs.
1,84,270/- to the Assessee in terms of the order dated 12 April
2003.
8. The learned Counsel appearing for the Appellant has
taken us through the impugned order and other relevant orders.
She submitted that the following question is a substantial
question of law, which arises in this Appeal:-
"Whether, in the facts and in the circumstances of
the case, the Tribunal was right in Law in allowing
the refund of modvat credit, when there was no such
provision for granting of refund by way of
cash/cheque in the central Excise Rules, 1944?"
23-CEXA-189-06.doc
9. Her submission is that in the earlier round, the
Appellate Tribunal has not directed the refund of the amount as
claimed by the Respondent. Her submission is that the order of
the Appellate Tribunal was that modvat credit under Rule 57A
of the Central Excise Rules 1944 was admissible to the
Respondent. Her submission is that in any case, there is no
provision in law to refund the amount to the Respondent.
10. The learned Senior Counsel appearing for the
Respondent pointed out that what was granted under order
dated 12 April 2003, was an order of refund by the Appellate
Tribunal and it is only for enforcing the said order that the
second refund claim was made on 31 July 2003 by the
Respondent. He placed reliance on the decision of learned
Single Judge of this Court in Deccan Sales Corporation & Anr.
Vs. R. Parthasarthy & Ors.1 and submitted that no interference
is called for.
11. We have carefully considered the submissions.
1 1982(10) E.L.T. 885 (Bombay)
23-CEXA-189-06.doc
We have perused the show cause notice dated 24 July 1995
issued by the Assistant Commissioner of Central Excise, which
clearly shows that there was a claim made for refund of Rs.
1,85,272/-. The Order-in-Original dated 18 August 1995 passed
by the Assistant Commissioner specifically rejects the claim for
refund. This order was carried in Appeal before the
Commissioner Appeals and thereafter to the Appellate Tribunal.
As noted earlier, in the Appeal preferred by the Respondent
before the Appellate Tribunal, there was a specific prayer to set
aside the order passed by the Assistant Commissioner of Central
Excise (Appeals) and sanction the refund of Rs. 1,84,270/- to
the Respondent. We have already quoted the operative part of
judgment and order dated 12 April 2003, by which by setting
aside the impugned order of the Commissioner (Appeals), the
Appeal preferred by the Respondent before the Appellate
Tribunal was allowed. Thus, the claim for refund was allowed.
12. We may note here that the judgment and
order passed by the Commissioner Appeals, which was
23-CEXA-189-06.doc
impugned before the Appellate Tribunal specifically holds that
the Respondent was not entitled to refund. As a result of the
order of the Appellate Authority allowing the Appeal under the
judgment and order dated 12 April 2003, the claim for refund
made by the Respondent was allowed as prayed in terms of
prayer clause (a) in the Appeal. The said judgment and order
dated 12 April 2003 has become final. Even in the Order-in-
Original dated 30 October 2003 passed on the basis of second
refund application praying for the same refund which was
claimed earlier, the Assistant Commissioner has referred to the
judgment and order dated 12 April 2003. By the impugned
judgment and order, the Appellate Tribunal has held that by the
judgment and order dated 12 April 2003 passed by the
Appellate Tribunal, the claim for refund made by the
Respondent was allowed.
13. As we have observed earlier, the judgment and
order dated 12 April 2003 passed by the Appellate Tribunal has
attained finality and the Appellant was bound by the said order
23-CEXA-189-06.doc
directing refund to the Respondent in the sum of Rs. 1,84,270/-.
14. All that the Appellate Tribunal has done by the
impugned judgment and order is to direct the implementation of
its earlier judgment and order dated 12 April 2003, which has
attained the finality.
15. Therefore, in our view, no question of law
much less a substantial question of law arises in this Appeal, in
the light of the judgment and order dated 12 April 2003 passed
by the Appellate Tribunal.
16. Accordingly, we find no merit in the Appeal
and the same is dismissed, with no order as to costs.
[RIYAZ I. CHAGLA J.] [ABHAY S. OKA, J.]
