CEA No.63 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CEA No.63 of 2007 Date of decision: 18.2.2008 Commissioner of Central Excise, Ludhiana ......Appellant Versus M/s Vardhman Spinning & General Mills Ltd., Chandigarh Road, Ludhiana ......Respondent CORAM:- HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sanjiv Kaushik, Advocate for the appellant. * * * Rakesh Kumar Garg, J . 1. The Department-revenue has filed this appeal under Section 35G of the Central Excise Act, 1944 (for short the 'Act'), against the order dated 27.6.2006 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi raising the following substantial question of law:- “Whether on the facts and in the circumstances of the case the order of the Hon'ble Tribunal can be said to be complete when the Tribunal has not considered all the grounds of appeal raised before it while passing the impugned order on 27.6.2006?” 2. The respondent-assessee had cleared some goods for export under bond. The said goods were exported and the respondent was asked to debit duty of such amount involved in exporting the goods. The respondent had debited the amount. The Department also demanded the same amount of duty from the merchant exporter who had paid the amount through TR-6 Challan No. 27.6.2001. The duty paid by the merchant CEA No.63 of 2007 2 exporter was on the direction of the revenue and hence the duty was paid twice on the same goods; once by the manufacturer and then by the merchant exporter. The respondent-assessee filed an application before the Assistant Commissioner for refund which was allowed on 5.9.2001 by the adjudicating Authority on coming to the conclusion that the duty has been paid twice. 3. Aggrieved by the said order the revenue came up in appeal before the Commissioner (Appeals), who also found nothing wrong in the Order-in-Original vide order dated 16.10.2003 and rejected the appeal. 4. The revenue further filed appeal before the Tribunal. The Tribunal vide its order dated 22.11.2005 held that it is settled law that duty cannot be paid twice on the same product and accordingly dismissed the appeal filed by the Department. 5. The Department filed an application for rectification of the order of the Tribunal dated 22.11.2005 before the Customs Excise and Service Tax Appellate Tribunal, New Delhi. The said rectification application was filed on the ground that there is a mistake apparent on record as the question of time bar was raised before the First Appellate Authority as per the grounds of appeal taken before the said authority. However, the same has not been considered. The Tribunal vide its impugned order dated 27.6.2006 dismissed the said rectification application. The present appeal has been filed by the Department against the said order. 6. We have heard learned counsel for the parties and perused the record. 7. Learned counsel for the appellant has argued that there is a mistake apparent on record of the case as the respondent-assessee has filed an application for refund beyond the stipulated period of one year and this question of time bar was raised before the First Appellate Authority CEA No.63 of 2007 3 and therefore, a mistake apparent on record has crept in as the First Appellate Authority and the Tribunal had not considered this argument of the Department and has wrongly rejected the appeal filed by the revenue . The contention raised by the appellant is devoid of any merit and is liable to be rejected. A perusal of the order dated 16.10.2003 passed by the First Appellate Authority clearly shows that no such argument regarding the claim of assessee-respondent having become time barred was raised by the revenue. It is also relevant to mention here that the Tribunal while dismissing the appeal of the revenue vide its order dated 22.11.2005 has clearly mentioned that the revenue has not agitated the issue of time bar before the Commissioner of Appeals and therefore, the revenue cannot be allowed to raise the same. While dismissing the rectification application, vide impugned order the Tribunal has categorically found as under:- “On plain reading the the Order-in-Appeal dated 16.10.2003 it is very clear that the appellant (i.e. Revenue in this case) before the First Appellate Authority had not challenged the time bar aspect by refuting the order-in-original with detailed grounds against the time bar. Since the revenue did not take up the issue with detailed challenged now it cannot be allowed to raise the same at second appeal stage. Further, during the course of arguments a question was put from the Bench, whether the time bar aspect was being agitated strongly before the Commissioner (Appeals) for which the answer was in negative. Since the issue of time bar was not agitated by the Revenue before First Appellate Authority, they are precluded from raising the issue before the CEA No.63 of 2007 4 Tribunal.” 8. Thus, we find no infirmity in the order of the Tribunal dismissing the rectification application filed by the revenue vide impugned order. The revenue has failed to show that there is any mistake apparent on the record of the case. The revenue has miserably failed to support the contentions raised in the case. Thus, no substantial question of law arises in the present appeal and the same is hereby dismissed. (RAKESH KUMAR GARG) JUDGE February 18, 2008 (SATISH KUMAR MITTAL) ps JUDGE