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2018 (10) TMI 1561 - CESTAT MUMBAIRejection of Refund claim without issuing show cause notice - refund claimed on the ground that they have not provided any service to M/s Generic Partners, Australia but only provided documents to them - refund rejected on the ground of time limitation - section 11B of CEA - unjust enrichment - Waiver of SCN by the appellant- Principles of Natural Justice. Held that:- A consistent view taken by this Tribunal is that there has to be issuance of show cause notice, since it is mandatory and if the same has not been issued, then it is contrary to law and such proceedings have to be quashed. The lacunae of non issue of show cause notice is not curable and such proceedings are not sustainable. Even if a party has waived the show cause notice, it will not absolve the department’s statutory liability to issue show cause notice under the relevant provision. Mere presence of the appellant before the Adjudicating Authority during the course of hearing does not authorise the department to encroach upon the right of the appellant to have a fair the opportunity of placing his defence before the adjudicating authority. The presence of the appellant before the Adjudicating Authority, without issuance of show cause notice, cannot lead to the conclusion that the appellant had a fair opportunity to defend the case. Otherwise also principle of natural justice requires issuance of show cause notice before the adjudication proceedings. There is no doubt that the principle of natural justice has been violated in the present matter - Appeal allowed - decided in favor of appellant.
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