TMI Blog2012 (3) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... N hence these orders are not sustainable – Decided in favor of assessee. - C/49/2006 - - - Dated:- 29-2-2012 - Mr.M.V. Ravindran, Mr. B.S.V. Murthy, JJ. Shri Paritosh Gupta, Adv.: for Assessee. Shri R. Nagar, A.R.: for the Revenue. Per: M.V. Ravindran: This appeal is directed against the Order-in-Appeal No.92/2006 (92-AHD)Cus/Commr(A)/AHD, dt.31.10.06. 2. Heard both sides and perused the records. 3. The brief facts that arise for consideration are that the appellant herein above filed a refund claim before their jurisdictional Assistant Commissioner for wrong classification of the product manufactured and cleared i.e. Corn Gluten Meal during the period 16.01.06 to 28.03.06. The jurisdictional authority issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is claimed was collected from, or paid by him and the incidence of such duty had not been passed on by him to any other person. 4. The appellant appeared before the adjudicating authority. The adjudicating authority, while rejecting the refund claim, has held as under: Here as the only issue before me is the refund claim filed by the exporter, I do not go in details of CTH under which the goods should fall but now important is assessment of shipping bill as a whole. I examine the case based on documents on record and shipping bills, which have been assessed finally long back. 5. Aggrieved by such an order, the appellant preferred an appeal before first appellate authority, who had upheld the order by passing the following order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipe Allied Industries Pvt.Ltd. Vs CCE Nasik 2008 (227) ELT 147 (Tri-Mumbai) 7. On careful consideration of the submissions made by both sides, we find that as reproduced herein above, there was no allegation in the Show Cause Notice the appellant was put to notice as regards rejection of refund claim on the ground that the shipping bills are not being challenged. 8. In our view, both the lower authorities have travelled beyond the allegations made in the Show Cause Notice and hence these orders are not sustainable. We are fortified by the judgment in the case of Jindal Vijayanagar Steels Ltd. 9. In view of the foregoing, we set aside the impugned order and allow the appeal with consequential relief. (Dictated Pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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