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2024 (5) TMI 276 - CESTAT NEW DELHIRejection of refund claim - GTA Service - time limitation - refund claim is filed after the expiry of time limit prescribed - principles of unjust enrichment - HELD THAT:- The scope of remand was a simple factual verification but the original adjudicating authority in sheer violation of judicial discipline has readjudicated the issue about impugned activity to fall or not under the scope of GTA Services. As already observed, the same was not the point raised even in the impugned show cause notice. The orders under challenge in both these appeals are not only an outcome of judicial indiscipline but are also held to be beyond the scope of show cause notice. Commissioner (Appeals) vide the impugned order has tried to distinguish as far as the principles of res judicata shall or shall not apply to the given facts. It is observed that there is a fundamental material change whenOrder-in-Original subsequent to final order of this Tribunal has been passed that Apex Court has decided the issue holding that the activity is covered under GTA - these findings are not sustainable as the classification was not the subject matter of the impugned show cause notice. The entitlement of appellant for the impugned refund, the issue of time bar and the issue of unjust enrichment have already stands decided in favor of the appellant including the issue of classification of the impugned activity of transportation (at least for this particular case). The refund claim has wrongly been rejected. The case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR VERSUS SINGH TRANSPORTERS [2017 (7) TMI 494 - SUPREME COURT] is held to have wrongly been applied retrospectively. The Commissioner (Appeals) have traversed while passing the impugned orders in both these appeals. The order are contrary to the findings of this Tribunal amounting to an act of Judicial indiscipline. Accordingly, the impugned order stands set aside. Appeal allowed.
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