TMI Blog2017 (3) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue to issue SCN to the appellant. Therefore the said SCN is lacking jurisdiction, hence all the proceedings flowing from the SCN is non-est in the eyes of law - appeal allowed - decided in favor of appellant. - E/2836/06 - A/86092/17/SMB - Dated:- 28-2-2017 - Mr Ramesh Nair, Member(Judicial) Shri. Prakash Shah, Advocate for the Appellants Shri. S.V. Nair, Asstt. Commissioner(A.R.) for the Respondent Order This appeal is directed against the Order-in- Appeal No.P-I/156/2006 dated 27-4-2006 passed by the Commissioner (Appeals), whereby the Ld. Commissioner (Appeals) allowed the revenue s appeal. The facts of the case are that the appellant has opted for provisional assessment of their final products sold thru their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file a separate refund claim. Since the amount of ₹ 19,74,066/- is not refundable, therefore there is no question of verifying the unjust enrichment in respect of this amount. With this view, the show cause notice was dropped by the adjudicating authority. Being aggrieved by the said order in original, the revenue filed an appeal before the Commissioner(Appeals), which came to be allowed, therefore the appellant is before me. 2. Shri Prakash Shah, Ld. Counsel appearing on behalf of the appellant submits that the issuance of show cause notice for demand of excise duty is illegal and incorrect that there is no demand arising out of final assessment order of the provisional assessment. The final assessment order itself is appealab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment order date 03.04.2003, I observed that the assessing authority passed the said assessment order wherein the excess paid duty was adjusted against the short paid duty and for the remaining amount, ordered that the appellant can file refund separately. This assessment order was not challenged by the revenue by review/filing appeal before the Commissioner (Appeals). Therefore the assessment order whether right or wrong, it attained finality. In such circumstances, it is not open to the revenue to issue show cause notice to the appellant. Therefore the said show cause notice is lacking jurisdiction, hence all the proceedings flowing from the show cause notice is non-est in the eyes of law. It is a settled legal position as per the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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