JUDGMENT B.P. Dharmadhikari, J.(Oral) - Petitioner questions the order dated 26-2-2004 passed by the Customs, Excise & Service Tax Appellate Tribunal (for short "CESTAT") in Appeal Nos. E/3693/2001 and E/3721/2001-Mum. [ 2004 (170) E.L.T. 224 (Tri.-Mum.)]. As the appeal filed by the department has been allowed, petitioner/assessee was expected to return to department the amount of Excise duty received back by it as refund. That has been stayed by this Court on 16-9-2004. Nobody has appeared for petitioner. We have perused record with assistance of Advocate Shri S.N. Bhattad who appears for the respondents. 2. Facts show that petitioner manufactured and supplied steel coils to Railways & other customers. Excise Duty was paid as per law when the coils were removed/cleared for delivery to Railways and other customers out of factory. Railways and other customers later on have returned said coils to petitioner. Petitioner thereafter cut the coil bundle into small pieces and then supplied it to some other customers. While effecting later supplies, again at the point of removal, Excise Duty has been paid. 3. Petitioner therefore applied for refund of Excise Duty paid by it earlier at the time of supply to Railways and other customers. The claim was entertained under Rule 173L and after Appellate order, amount is also refunded to it. 4. Later on, CESTAT has on 26-2-2004 accepted the appeal of Revenue. It has found that after return of coils by Railways and other customers, there was no manufacture and hence, no occasion to levy excise when same coil was cut into small bundles and supplied to some other consumers. Its observations in para nos. 6 and 7 show a finding that in fact assessee need not have paid Excise Duty at the time of second supply. With this finding, CESTAT then appreciated the fact that refund claim was under Rule 173L which was not attracted and also that the claim for refund was not within six months as required by Section 11B. Because of this finding as return/refund of Excise Duty was claimed under a wrong provision, the appeal of department (present respondents) has been allowed. 5. We find that respondents before this Court are State within the meaning of Article 12 of the Constitution of India. They are entrusted with a more responsible burden of charging and collecting revenue. Because of this finding as return/refund of Excise Duty was claimed under a wrong provision, the appeal of department (present respondents) has been allowed. 5. We find that respondents before this Court are State within the meaning of Article 12 of the Constitution of India. They are entrusted with a more responsible burden of charging and collecting revenue. When CESTAT found that on second occasion, there was no exigible transaction, CESTAT ought not to have adopted a too technical view. 6. We have also attempted to find out whether there was any difference in quantum of Excise Duty paid initially when coils were sent to Railways & other customers and on later occasion, when very same coils were dispatched to other consumers. Learned advocate for respondents, from records mentions that duty chargeable and paid was same. 7. We therefore find that petitioner with all bona fides paid Excise Duty for second supply as per law and then proceeded to claim refund for first supply. When department found that no Excise Duty was payable for second supply it ought to have refunded that amount to him without going into technical aspects of the matter. 8. We therefore find that interest of justice can be met with by directing respondents to treat the refund already made to petitioner as refund of Excise Duty paid by it on second supply. Accordingly amount already paid to petitioner be adjusted and there shall not be any recovery from petitioner on said count. 9. With this direction, we partly allow writ petition and dispose it of. No costs.