Stay Order No. 379/2008, arising from Application No. Stay/22/2008 in Appeal No. ST/37/2008. Case: Ogilvy & Mather Pvt. Ltd. Vs Commr. Of Service Tax, Bangalore. CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)
| Case Number | Stay Order No. 379/2008, arising from Application No. Stay/22/2008 in Appeal No. ST/37/2008 |
| Counsel | For Appellant: Shri K.S. Ravi Shankar, Advocate, and For Respondent: Shri Raja Dass, JDR, |
| Judges | Dr. S.L. Peeran, Member (J) |
| Issue | Central Excise Act, 1944- Sections 11B and 35F |
| Citation | 2008 (11) STR 518 (Tri. - Bang.) |
| Judgement Date | May 07, 2008 |
| Court | CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal) |
Order:
(South Zonal Bench, Bangalore)
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The appellant is seeking waiver of deposit of refund amount already sanctioned and received by the assessee to an extent of Rs. 4,48,188/-. The Tribunal has remanded the case to the Original authority for de novo consideration. After a detailed consideration, the Appellate authority by his order No. 137/2004-CE, dated 30-7-2004 [2006 (2) STR 92 (Commr. Appl.)] allowed the appeal subject to verification of unjust enrichment by the Adjudicating authority. After due verification, the refund was sanctioned and the amount was received by the assessee. The Department after a long time issued a show cause notice on 14-9-2004. The appellant''s contention is that the order passed by the Commissioner (Appeals) has become final and the Department cannot re-open the issue by issue of show cause notice. The authority has taken a view that they need not appeal against the Commissioner''s (Appeals) order and the matter can be reopened by issue of a show cause notice. This is supported by the judgment of Bombay High Court rendered in the case of Indian Dyestuff Industries Ltd. v. Union of India [2003 (161) ELT 12 (Bom.)].
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The learned Counsel distinguishes the above cited judgment and submits that in normal circumstances, the law is clear that the refund granted can be re-opened by issue of show cause notice, but in circumstances when the refund has been sanctioned by the Appellate Authority which has not been challenged and that order has become final as held by the Apex...
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