Commissioner of C. Ex. Vs. Shree Jagdamba Polymers Ltd.

1. this application for stay of operation of the order of the commissioner (appeals) is filed by the revenue. heard the learned sdr and perused the records. none appeared for the respondent.2. the respondents got hdpe woven sacks manufactured through a job worker, m/s. tirupati packaging, who discharged the duty liability on the woven sacks. consequent on a cestat's decision that the woven sacks are classifiable under chapter 39 of the central excise tariff act, refund claims arose. such claims were made by the said job worker which were rejected. the appeal against such rejection is pending with the tribunal. meanwhile the present respondents claim refund for the same amount on the plea that they have borne the incidence of duty. these claims were also rejected by the assistant commissioner inter alia on the ground that the job worker's claim for refund of the same amount is pending in appeal with cestat. the respondents went in appeal to the commissioner (appeals) who allowed the appeal and set aside the order of the lower authority. the revenue is aggrieved by the order of the commissioner (appeals). hence the application for stay.3. we observe that in the facts and circumstances of the case, the revenue made out a strong case for stay of operation of the order of the commissioner (appeals). we accordingly stay the operation of the order of the commissioner (appeals), pending the appeal.