ORDER
P.G. Chacko, Member (J)
Page 469
1. M/s Tamil Nadu Newsprint and Papers Ltd., (TNNPL, for short) had cleared certain quantity of paper to their customer on payment of duty during 1999-2000, though they were not liable to pay the duty. Subsequently, they filed a refund claim in respect of the duty amount (Rs. 67,954/-). The original authority sanctioned the refund after noting that the duty paid by M/s TNNPL had not been passed on to the buyer. However, it adjusted the amount of refund against an earlier demand of duty confirmed against the assessee. Page 470 Against the sanction of refund of Rs. 67,954/- to the assessee by the original authority, the Department filed an appeal with the Commissioner (Appeals). The appellate authority found that M/s TNNPL’s buyer (M/s Navneet Publications (I) Ltd.,) had availed rebate of duty on the goods supplied by the assessee and accordingly took the view that the refund claim was hit by unjust enrichment. Thus, the Department’s appeal stood allowed (as per Order-in-Appeal No. 331/2003 dated 14.11.2003). This order of the Commissioner (Appeals) was not appealed against by M/s TNNPL.
2. Against the order of the original authority adjusting the refund amount against an earlier demand of duty confirmed against the assessee, M/s TNNPL preferred an appeal to the Commissioner (Appeals). The appellate authority by Order-in-Appeal No. 336/2003 dated 18.11.2003 dismissed that appeal in view of Order-in-Appeal No. 331/2003 ibid. The present appeal is against Order-in-Appeal No. 336/2003. After hearing both sides and considering their submissions, I find that Order-in-Appeal No. 331/2003 which set aside the refund order of the original authority has become final and binding on the assessee, who did not choose to file appeal against it. It was argued by ld. Counsel for the appellant that the present appeal should be treated as having been filed against both the Orders-in-Appeal. This argument is simply unacceptable. The issue considered by ld. Commissioner (Appeals) in Order-in-Appeal No. 331/2003 was whether M/s TNNPL was entitled to cash refund of Rs. 67,954/-. This issue was decided against the assessee and the decision, though appealable, was not appealed against. The question considered by ld. Commissioner (Appeals) in Order-in-Appeal No. 336/2003 was in relation to adjustment of refund amount against an earlier demand of duty confirmed against the party. The present appeal is only against Order-in-Appeal No. 336/2003 and cannot be considered to be one filed against Order-in-Appeal No. 331/2003.
3. Relying on Board’s Circular No. 423/56/98-Cx dated 22.09.1998, ld Counsel argued that, if the refund order passed by the original authority was erroneous, the only option for the Department was to issue a show-cause notice under Section 11A of the Central Excise Act for recovery of the amount. Again, this argument is untenable inasmuch as no cash refund was effected in this case. Unless any amount of money is actually paid to a person by way of refund of duty, there is no question of recovery under Section 11A. The order of the original authority, in the instant case, was one sanctioning refund of an amount of duty and the same was challenged by the Department before the Commissioner (Appeals).
4. As the question whether M/s TNNPL was entitled to cash refund of Rs. 67,954/- was conclusively settled by the lower appellate authority in Order-in-Appeal No. 331/2003, the challenge against Order-in-Appeal No. 336/2003 does not survive. In the result, the impugned order gets affirmed and this appeal is dismissed.
(Operative portion of the order was pronounced in open court on 28.11.2005)