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2017 (10) TMI 734 - CESTAT ALLAHABADRefund claim - jurisdiction - Whether the Show Cause Notice dated 03/11/2001 and the subsequent proceedings are in the teeth of the ruling of Hon'ble Supreme Court in the case of Mafatlal Industries Limited Versus Union of India [1996 (12) TMI 50 - SUPREME COURT OF INDIA]? - Held that: - the SCN is wholly without jurisdiction and is an abuse of the process of the law. Further, there is no appeal filed by the Revenue against finalization of the assessment order dated 19/07/2000. Further, there has been no appeal filed by the Revenue against the order granting refund dated 06/11/2000. In this view of the matter, the Show Cause Notice is void-ab-initio. - the SCN and the subsequent orders impugned herein are void-ab-initio and in the teeth of the ruling of Hon'ble Supreme Court in the case of Mafatlal Industries Limited Versus Union of India, wherein the Apex Court has held that The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short or in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be. Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be. Whether the provisions of unjust enrichment introduced in the scheme of provisional assessment with effect from 25th June, 1999 by Notification No. 45/1999 CE have retrospective effect? - Held that: - the issue of unjust enrichment is concerned have been introduced in the provisional assessment scheme with effect from 25th June, 1999 and the same is not retrospective. Appeal allowed - decided in favor of appellant.
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