1. This appeal arises from Order-in-Appeal No. 54/04-C.E., dated 25-3-2004. The Commissioner (A) has noted that an appeal under Section 35 of the CE Act cannot be filed before him against the Department's communication C. No. IV/16/8/2003/220, dated 14-1-2004, which is on the following lines.
Please refer to your letter dated 9-1-2004 with reference to the O-IN-O No. 62/03, dated 14-8-2003 issued by the Dy. Commissioner of Central Excise, Ernakulam I Division. Since the O-IN-O has already been issued, if you are aggrieved with the order you are advised to file appeal against the said order to the Commissioner (A).
Therefore, the referred letter cannot be treated as refund application.
2. The learned Counsel submits that the deposit of duty was by mistake of law and therefore their letter dated 9-1-2004 for refund has to be considered as a refund application. The return of their application for refund by the Dy. Commissioner is not justified. The said return of the refund application has to be treated as an order by the Dy.
Commissioner and hence, the appeal filed before the Commissioner is entertainable. The learned Counsel further submits that the Tribunal in the case of Indian Explosives Limited reported in 1991 (56) E.L.T. 583 in an identical situation has considered conveying a decision against a letter to be a decision or order passed by the adjudicating authority and to be appeable under Section 35 of the Central Excise Act. The learned Counsel submits that the matter has to go back to the original authority with a direction to take their letter dated 9-1-2004 as an application for refund and decide the matter on merits. The learned Counsel submits that the Tribunal had by Final Order No, 400 to 403/2003, dated 19-3-2003 had remanded the matter, yet the authorities have not considered the same.
4. On a careful consideration, we notice from the cited judgment of Indian Explosives Limited that conveying a decision on a letter for refund has been treated as a decision or an order passed by the adjudicating authority and the same to be appeable under Section 35 of the Central Excise Act, The appellants had deposited the duty by mistake of law and there is no prescribed format for filing a refund application. Therefore, they made a request by their letter dated 9-1-2004. The Dy. Commissioner was not justified in returning the claim for refund, he ought to have given a hearing and called upon the appellants to produce any evidence required for deciding the matter.
The Commissioner (A) is also not correct in rejecting the appeal holding that the communication of the Dy. Commissioner is not an appealable order. As held in the case of Indian Explosive Limited (supra), communication of the Dy. Commissioner has to be treated as a decision or an order passed by the adjudicating, authority and the same is appeable. The matter is remanded to the Original Authority to consider the request for refund in terms of the appellants' letter dated 9-1-2004 and decide the matter within four months from the receipt of this order. The appellant shall be given full opportunity in terms of principles of natural justice. The appeal is allowed by remand to the Original Authority.
(Operative portion of this Order was pronounced in open court on conclusion of hearing)