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2016 (8) TMI 930 - CESTAT MUMBAI

2016 (8) TMI 930 - CESTAT MUMBAI - 2016 (340) E.L.T. 565 (Tri. - Mumbai) - Refund claim - period of limitation - Held that:- it was open to the appellant to opt for provisional assessment if he was unable to determine the assessable value at the time of clearances from the factory. If he has not opted for the same, the only recourse open to him is to file a refund claim under Section 11B. The show-cause notice issued under Section 11B are in the nature of communication of the objection. In fact .....

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1/2006 a show-cause notice was issued to the appellant seeking to deny the refund claim on the ground of unjust enrichment. Another show-cause notice for the same amount was issued on 29/10/2007 seeking to deny the claim on the ground of limitation. Both the notices were heard together and refund claim was rejected on the ground of limitation. Aggrieved by the said order, the appellants are in appeal before the Tribunal. 2. The learned Counsel for the appellant argued that two show-cause notices .....

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ow-cause notice cannot be issued. It was noticed that all the cases cited by the appellant were in respect of demands made by the Revenue and not in respect of the refund claims. He also relied on the decision of the Hon ble High Court of Bombay in the case of Vidarbha Veneer Industries Ltd., Vs. UOI - 1992 (58) ELT 435 (Bom) to assert that the provisions of Section 11B of the Central Excise Act were not applicable where the recovery of duty by the department was held to be illegal. 3. The learn .....

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the case of ONGC Vs. CCE, Mumbai - 2011 (24) STR 212 (Tri-Mum) which was upheld by the Hon ble High Court of Bombay as reported in 2013 (298) ELT 705 (Bom). The Hon ble High Court in the said case has observed as under: 4. Before concluding, it is necessary for this Court to observe that while adjudicating upon refund claims, it is necessary in the interest of justice for the assessing officers as well as the first appellate authorities to dispose of all the objections. Otherwise, where the asse .....

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