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(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI)

1. This Tax Appeal has been filed by the Revenue challenging the order dated 31.7.2008 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench at Ahmedabad ["Tribunal" for short], whereby the Tribunal has allowed the appeal of assessee, set aside the impugned order passed by the Commissioner [Appeals] and remanded the matter to the original adjudicating authority for examination of other aspects like unjust enrichment etc.

2. While admitting the Tax Appeal, this Court framed the following substantial question of law:

"Whether the Tribunal committed an error in remanding the matter to the original adjudicating authority for considering the refund claim when the assessee has not challenged the original order of fixation of Annual Capacity of Production passed by the Commissioner?"

3. We have heard Mr. Kalpesh N Shastri, learned counsel appearing on behalf of the appellant. Though served, none appears on behalf of the respondent.

4. We have gone through the impugned order passed by the Tribunal. The Tribunal has given cogent reasons and thereafter remanded the matter to the original adjudicating authority. The appellant would not suffer any loss if the matter is again decided by the adjudicating authority for reconsidering the refund claim of the assessee.

5. For the aforesaid reasons, we do not find any merit in this appeal. The appeal is dismissed. The question of law is answered in favour of the assessee and against the Revenue.