2023 (9) TMI 296 - CESTAT CHANDIGARH

Disallowance of refund sanctioned erroneously by the adjudicating authority - exercise of power of revision under Section 84 of the Finance Act - unjust enrichment - request of appellant not discussed - proper opportunity of hearing not provided - violation of principles of natural justice - HELD THAT:- The exercise of power of revision by the Commissioner under Section 84 after the expiry of more than one year and ten months from the date of sanctioning of refund is not justified, secondly issuance of show cause notice dated 28.12.2010 affording one opportunity on four dates mentioned in the said notice only amount to one opportunity.

There are no reason not to grant a week’s time to the appellant to file reply to the show cause notice. It appears from the impugned order that the Commissioner was bent upon passing the impugned order without affording any opportunity of hearing to the appellant. Further, the Commissioner has not even declined the request of the appellant and has not discussed his request at all in the impugned order.

Unjust enrichment - HELD THAT:- Once the nestle has issued the certificate dated 23.01.2009 certifying that during the period 01.01.2005 to 31.10.2006 the appellant has not claimed any service tax from them, therefore, the question of unjust enrichment does not arise, but in the impugned order Commissioner (Appeals) did not consider any evidence whatsoever to come to the conclusion that principle of unjust enrichment is applicable in the present case.

The impugned order is not sustainable in law - Appeal allowed.