Page 172 - ELT_15th August 2020_Vol 373_Part 4

506 EXCISE LAW TIMES [ Vol. 373

duty appeared to be paid excess, assessee has applied for refund of duty excess
paid. Said claims were processed and by orders in original dated 28th February
2007 vide Annexures-H, J, J1 and K. Order of refund was ordered.
7. Being aggrieved by the said order, appeals came to be filed before
the Appellate Authority viz., Commissioner of Appeal in Appeal Nos. 268, 269
and 301 of 2007 under Section 35E(4) of the Central Excise Act, 1944, which came
to be adjudicated by a common order dated 8th August 2008 passed in Order-in-
Appeal No. 90/2008 all the appeals filed by Revenue came to be dismissed. Rev-
enue pursued its grievance before the Customs, Excise & Service Tax Appellate
Tribunal, Bangalore (for short ‘CESTAT’) challenging the order in Appeal No.
90/2008, dated 8th August 2008 (Annexure-Ml). Said appeal filed on 18th No-
vember 2008, which was numbered as E/839/2008. Since the Department had
filed only one appeal, CESTAT noted the same and adjourned the matter to 23rd
July 2010 vide order dated 26th March 2010 by directing the Revenue to file two
more appeals. Subsequently, matter was listed on 12th August 2010, on which
date, Tribunal noticed that appeal so ordered to be filed had not been filed.
However, supplementary appeals came to be filed on 3rd September 2010. With-
out condoning the delay, supplementary appeals so filed came to be dismissed
vide order dated 6th January 2011 (Annexure-Q). Against order dated 6-1-2011,
undisputedly, no appeals have been filed by the Revenue. In effect, department
of Revenue has accepted the order of refund passed in favour of the appellant
herein.
8. Be that as it may. Insofar as Appeal No. E/839/2008, which came to
be filed by the Department, came to be allowed by the Tribunal, altogether on a
different ground, which was never canvassed or urged in the appeal memoran-
dum filed by the Department before CESTAT. Tribunal arrived at a conclusion
that prayer of the appellant/assessee opting for provisional assessment which
was made by submitting a request letter dated 26th October 2005 had been de-
clined by the Superintendent of Central Excise vide Annexure-D and as such ap-
pellant/assessee ought to have filed an application for refund within a period of
one year from the date of said communication dated 7th December 2005 and the
application for refund which was filed on 22nd December 2006 was beyond the
period of one year as prescribed under Section 11B of the Central Excise Act and
as such appeal of the Revenue came to be allowed by setting aside the order
passed by the original Authority as affirmed by Appellate Authority. Hence, this
appeal.
Re : The Substantial Question of Law :
9. It is the contention of Sri Dakshina Murthy, Learned Counsel appear-
ing for the appellant that appeal which came to be filed by the Revenue before
the CESTAT i.e. Appeal No. E/839/2008-SM against the Order-in-Appeal No.
90/2008 had been filed on 18th November 2008 and said appeal was disposed off
on 25th November 2017 and as on the date, appeal came to be disposed of by
CESTAT, appeal filed by the Revenue itself was not maintainable and it was
barred as per extract Circulars issued by Department. He would rely upon the
Circulars Bearing No. 390/Misc./163/2010-JC, dated 20th October 2010, 17th
August 2011, 17th December 2015 and 1st January 2016. By relying upon said
Circulars, he would submit that appeal itself was not maintainable and Tribunal
ought to have dismissed it on that ground and CESTAT could not have adjudi-
cated the appeal on merits.

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