Order Date – 02 August 2023

Parties: M/s. W.S. Industries (India) Ltd. Vs The Commissioner of Central Excise

Facts –

• The Appellant, M/s. W.S. Industries (India) Ltd., had filed a refund claim in terms of Notification No. 41/2007-st dated 06.10.2007.
• A Show Cause Notice dated 11.05.2010 was issued proposing to reject the refund claim. After due process of law, the original authority sanctioned the refund partly. On appeal filed by the appellant the Commissioner (Appeals) uphold the order in original vide Order–in-Appeal dated 08.10.2013
• Meanwhile, the department also filed an appeal before the Commissioner (Appeals) against the sanction of refund by the original authority, the Commissioner (Appeals) vide Order-in-Appeal dated 29.10.2013 disallowed entire refund claim.

Issue – 

• Whether the appellant is entitled to refund?

Order – 

• The Tribunal observed that the Commissioner (Appeals) instead of hearing both appeals together has heard the appeals separately which has resulted in passing conflicting orders. The order passed by Commissioner (Appeals) in the appeal filed by the appellant is prior to the order passed in the department’s appeal.
• When an order has already been passed upholding the sanction of part of the refund claim, the same authority cannot pass another order setting aside the sanction of entire claim. Such order is ab initio void and non-est.
• Further the department has not preferred any appeal against the order dated 08.10.2013 and the same has attained finality. Moreover, in the present case, it is seen that the Show Cause Notice is issued proposing to restrict the refund claim to Rs. 4,27,062/- and not proposing to reject the entire claim. For this reason also the impugned order passed so as to reject the entire refund claim is not justified.
• In the result, the impugned order is set aside, the appeal is allowed with consequential relief.