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Sonar Impex Versus Commissioner of Central Excise, Customs And Service Tax, Belgaum

2015 (7) TMI 467 - CESTAT BANGALORE

Denial of refund claim - in the second proceedings original authority has found that a portion of the refund claim was time-barred which shows that there was no proper verification of documents. - Non fulfillment of conditions prescribed in the Board's Circular No. 97/08/2007 dated 23.08.2007 - Held that:- the application for refund was rejected by the Assessing Authority. It was, however, allowed by the Appellate Authority. It is not in dispute that no further appeal was taken therefrom. The sa .....

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preme Court in the case of Kamlakshi Finance Corporation Ltd. [1991 (9) TMI 72 - SUPREME COURT OF INDIA] is applicable and therefore the order should have been simply implemented. - Appellant would be eligible for the interest after 3 months from the date of filing the claim in this case so that another round of litigation is not initiated by not granting the interest by the original authority - ST/1111/2012-SM - Final Order No. 21140/2015 - Dated:- 12-5-2015 - B S V Murthy, Member (T),J. For th .....

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ering from 153 to 156/2007 all dated 28.03.2008. On an appeal filed bythe appellants, the Commissioner (Appeals) in his order-in-appeal dated 13.05.2009 allowed the appeals. Before allowing the appeal the Commissioner (Appeals) called for a verification report from the original adjudicating authority and asked him to clarify whether the 3 conditions specified in the circular issued by the Board regarding place of removal have been fulfilled or not. The 3 conditions are whether the ownership of t .....

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appeals. No appeal was filed by the Revenue against this order. 2. Instead fresh proceedings were started by the Revenue by issuing another show-cause notice on 22.03.2010. The show-cause notice while admitting the fact that the Commissioner (Appeals) had allowed the appeals after getting the verification report and assessee had filed a letter dated 29.12.2009 for refund as per the order passed by the learned Commissioner, the show-cause notice mentions that assessee was asked to produce documen .....

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rejected all the claims on the ground that appellant had not fulfilled these conditions and did not produce evidence of fulfillment of these conditions. On an appeal filed by the appellants, Commissioner (Appeals) also upheld the order passed by the original authority. Both the lower authorities while undertaking the fresh proceedings, have not dealt with the claims made by the appellant that the original-in-appeal dated 13.05.2009 had attained finality. 3. When the matter was called the learned .....

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go through the verify the documents to determine their eligibility or to determine whether they are fulfilled the conditions. He relies upon the decisions in the case of Triveni Chemicals Ltd. Vs. Union of India [2007 (5) S.T.R. 177 (S.C)] to submit that once an order had attained finality, in the absence of any appeal, the Revenue cannot initiate fresh proceedings but has to implement in the order. He relies on the decision of Hon'ble Supreme Court in the case of Union of India Vs. Kamlaks .....

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the Commissioner (Appeals) had allowed their appeals. 4. Learned AR would submit that in the second proceedings original authority has found that a portion of the refund claim was time-barred which shows that there was no proper verification of documents. Therefore he submits that the proceedings initiated afresh cannot be found fault with. 5. I have considered the submissions made by both the sides. I find that while issuing show-cause notice, only ground taken by the Revenue in the first roun .....

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ortunately in this case even at the beginning itself, by failing to issue a detailed show-cause notice covering other grounds, the opportunity to refuse portion of refund was lost. The show-cause notice was limited to only one ground and this was covered by the original authority and the Commissioner (Appeals) order dated 13.05.2009. Commissioner has considered the issue properly by getting the documents submitted before him verified and getting the verification report by the original authority .....

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itted another mistake by issuing another show-cause notice after 9 months in March 2010. This show-cause notice could not have been issued at all. Only option available was to file rather than issuing a show-cause notice. Taking note of the fact that before the Tribunal, there is no limit for condonation of delay, there was time available to rectify the defects and file appeal even at this stage which was also lost. 7. The legal process adopted in this case shows that opportunities to proceed pr .....

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r option, if exercised, would be illegal. It is unfortunate that law enforcing/implementing agency chooses to ignore the law and just because assessee became entitled to refund, proceeded to somehow deny refund, without even considering legal options. The decision of the Hon'ble Supreme Court in the case of Triveni Chemicals Ltd. was rightly relied upon by the learned counsel in this regard. Paragraphs 7, 8 and 9 would be relevant and are reproduced: "7. The short question which arises .....

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le as to whether the application for refund was in the prescribed form or not. The respondents herein could raise all contentions before the Appellate Authority. In fact, before the original authority, a plea of unjust enrichment was raised. Such a plea, however, appears to have not been raised before the Appellate Authority. If no such plea was raised, only because the appellant herein filed an application to be dealt with on the administrative side for refund subsequently, the same would not, .....

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o so in view of the doctrine of judicial discipline. The same having not been done, in our opinion, the plea sought to be raised now that it was for the appellant to prove that the burden of the duty had not been passed to the customers cannot be accepted." 8. In that case also, the fresh round was started by the Revenue on the ground that question of unjust enrichment was not considered in the initial round and Hon'ble Supreme Court said that once the order attained finality, even on t .....

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