ORDER
Chittaranjan Satapathy, Member (T)
1. Heard both sides at length in respect of these nine appeals, four of which have been filed by the Department and five of them have been filed by M/s. Dharampal and Satyapal Ltd. and others. We find that the impugned Orders-in-Original has been passed by the Original Authorities, (sic) in pursuance of the amendments made in Section 154 of the Finance Act, 2003 retrospectively. The Appellate Authority vide his Orders dated 24.6.2004 and 15.6.2005 has set aside the impugned Orders and has remanded the matter to the adjudicating authority with direction to pass Orders in accordance with law. The learned Advocate, Shri R.K. Chowdhury for the Department states that the Remand Order is bad as the Original Authorities have passed correct Orders in accordance with the law. He also draws our attention to the Hon’ble Supreme Court’s Order in the case of R.C. Tobacco Pvt. Ltd. v. Union of India and states that no show cause notice was required to be issued in this case in terms of the said Order of the Hon’ble Supreme Court, and the lower Appellate Authority is not correct in not upholding the Orders-in-Original.
2. Shri A. Madhav Rao, learned Advocate appearing for the respondents and vice versa, does not challenge the duty-liability, but states that interest is not payble for the entire period in view of the Order-in-Appeal subsisting in favour of the appellants. He also states that where the refunds have been granted after finalisation of assessment, the same is not required to be paid back as no appeals have been preferred by the Department against the same. In support of his argument, he cites the following decisions:
(a) CCE, Meerut v. Rama Vision Ltd. 2005 (181) ELT 201 (SC);
(b) CCE, Hyderabad v. Associated Cement Companies Ltd. ;
(c) Food Corporation of India v. State of Haryana and Anr. Reports of Saltes Tax Cases Volume 119, 2000.
3. After hearing both sides and perusal of the case records including the cited case laws, we find that the decision of the Hon’ble Supreme Court in the case of R.C. Tobacco Pvt. Ltd. (cited supra) squarely covers the issue at hand. In the said case, the very same impunged Notification No. 32/99-CE and its retrospective amendment in respect of the impugned goods have been considered by the Hon’ble Supreme Court. The constitutional validity of such retrospective amendment has been upheld as also the other provisions introduced by Section 154 of the Finance Act, 2003 including the provisions regarding non-maintainability of appeals before the Appellate Authority have been upheld. Since the said decision has been rendered at a later point of time, apart from being directly related to the Notification and the issues at hand, we are of the view that the ratio of the said decision is applicable to the present case. The argument by the learned Counsel, Shri Rao that the earlier decisions in the case of Rama Vision (cited supra), Associated Cement Companies (cited supra) and Food Corporation of India (cited supra) lead to a different conclusion, is not tenable in the light of the latest decision of the Hon’ble Supreme Court in the case of R.C. Tobacco Pvt. Ltd. (cited supra). We also do not find any support in any of the decisions of the Hon’ble Supreme Court cited above, to conclude that in the cases where refund has been allowed after finalisation of assessment, the demands pursuant to the retrospective amendment cannot be sustained. We further find that it is not possible to conclude from the cited judgment that interest is not payable from the data specified in view of the retrospective amendment.
4. In view of our findings above, we are of the view that the lower Appellate Authority was not justified in allowing the appeals and setting aside the Order-in-Original, particularly in the light of the specific provision regarding non-maintainability of appeal contained in Section 154(3) of the Finance Act, 2003 and the Hon’ble Supreme Court’s decision in the case of R.C. Tobacco (cited supra).
5. Accordingly, we set aside the impugned Order-in-Appeal and allow the appeals filed by the Department by restoring the Orders-in-Original. The appeals filed by M/s. Dharampal and Satyapal Ltd. are dismissed.
(Operative part of the Order was pronounced in the court on 28.5.2007)