2026-VIL-1208-CESTAT-KOL-CE
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CENTRAL EXCISE CESTAT Cases

Central Excise - Procedural requirement to file appeal against Orders in Original within stipulated time - The appellant exports goods on payment of excise duty and claims rebate for such exports. The adjudicating authority grants part of the rebate as cash refund and balance as Cenvat Credit. The appellant, being dissatisfied with the portion granted as Cenvat Credit, approaches the assistant commissioner after about one year and five months requesting cash refund in lieu of Cenvat Credit. The assistant commissioner refuses the request on the ground that he becomes functus officio once the Order in Original is passed - The appellant then files an appeal against the letter of refusal before the Commissioner (Appeals), who dismisses it holding that the proper course for the appellant was to file an appeal against the Orders in Original within the stipulated period of ninety days from the date of communication of such order and not to approach the adjudicating authority again after the time limit has expired - Whether the appellant can approach the assistant commissioner after expiry of the appeal period to seek modification of the Order in Original granting part refund as Cenvat Credit into full cash refund - HELD - The proper remedy available to the appellant was to file an appeal before the Commissioner (Appeals) against the Orders in Original within the prescribed time limit of ninety days. The appellant's failure to exercise this remedy within the stipulated period proves fatal to the case - The adjudicating authority becomes functus officio once the Order in Original is passed and cannot sit on the same to modify or rectify it. Further, the request letter filed after such considerable delay clearly indicates that the appellant came to know that he had run out of time to file the proper appeal and hence resorted to an irregular method for which there is no provision in law - The appeal is dismissed
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