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2019 (11) TMI 1348 - AT - Service TaxRefund of unutilised Cenvat Credit - rejection on merit when issue of Jurisdiction remain unresolved - rejection on the ground that invoices raised in the name of unregistered branch office, which has been affirmed by the Commissioner (Appeals) in his order referred above, is assailed in this appeal - HELD THAT:- Admittedly in the deficiency memo jurisdictional issue had not been agitated nor there was any attempt made by the refund sanctioning authority to send the refund application to Gurgaon Commissionerate, if he were of the view that such an application for refund was not maintainable at Mumbai. Jurisdiction being preliminary issue should have been considered at the first instance before the merit of refund was to be adjudicated upon but the Learned Asst. Commissioner (Refund-II) Service Tax-I Mumbai preferred to give his findings on both without any show cause notice was issued to the appellant indicating his intention to reject such refund claim - the legality of the order concerning non-maintainability of the refund claim at Mumbai and its confirmation by the Commissioner (Appeals) is unsustainable. Other grounds of rejection of refund were also dealt with out of which appellant had accepted the time barred claim of ₹ 43,399/- which has been abandoned by it as revealed from page no. 17(1) of its appeal memo. Concerning the rest 3 rejection of refund of ₹ 188310/- ₹ 1,24,301/-₹ 1,08,915/- on the ground of mismatch of invoices/improper invoices etc., appellant had put forth its stand unsuccessfully before the Commissioner (Appeals) and even filed export invoices etc. in this court as additional evidence but having regard to the fact that appellant was denied of the opportunity to defend its case before the refund sanctioning authority who even did not prefer to issue show cause notice to it in grass violation of the principle of natural justice, in the absence of opportunity being provided to the appellant to put forth the genuiness of its refund claim for which the order of Commissioner (Appeals) confirming the rejection order passed by the Asst. Commissioner is unsustainable in law. Appellant is entitled to get refund of ₹ 28,00,095/- which respondent department is directed to pay within two months from the date of passing of this order with due regard to Section-11AA concerning applicability of interest on refunds - Appeal allowed.
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