At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Bangalore
By, THE HONORABLE JUSTICE: S.S. GARG
By, MEMBER AND THE HONORABLE JUSTICE: V. PADMANABHAN
For Petitioner: Naveen Kushalappa, Jt. Commissioner (AR)
1. The respondent is a manufacturer of various goods falling under Chapter 85 and Chapter 90. As required at the relevant time, they filed classification declaration as required under the then Rule 173B classifying Patchcord and pigtails under sub-heading 9033.00 of the CETA. However, it was ultimately decided that such goods will be rightly classifiable under Heading 85.44 and the Assistant Commissioner sanctioned the refund amount of differential duty. Subsequently Department had second thoughts and issued show-cause notice proposing to recover the refund as erroneous. The same original authority by passing an order demanded repayment of the duty already refunded. Aggrieved by this course of action by the Assistant Commissioner, the respondent filed appeal before the Commissioner(Appeals) where they secured a favourable decision. Aggrieved by this impugned order, Revenue has filed present appeal. With the above background, we heard Shri Naveen Kushalappa, A.S. for the Revenue. None appeared on behalf of the respondent.
2. The Commissioner(Appeals) in the impugned order has taken the view that once the Assistant Commissioner has sanctioned refund, it is not within his powers to modify his own order. The only course of action available would be for the jurisdictional Commissioner to review the order of the Assistant Commissioner and direct him to file an appeal against his own order as per Section 35E(2) of the Central Excise Act. In the present case, since these steps have not been taken, the Commissioner(Appeals) has set aside the confirmation of demand by the Assistant Commissioner. Any adjudicating authority, after he passes a quasi judicial order, becomes a functus officio. This means that once he has exercised his quasi judicial power of adjudication, he ceases to have the power to readjudicate the same issue. The Central Excise Act prescribes the procedure for review of an order passed by the original adjudicating authority. Such powers of review are to be exercised by the Commissioner by directing the original authority to file an appeal against his own order
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before the appellate authority. In the present case, no such steps are found to have been taken. Consequently, the impugned order is fully justified and is upheld. Consequently, the appeal filed by the Revenue is rejected.