TMI Blog2017 (3) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... id incorrectly would have to be backed by an order of assessment - If the tax or interest was due, tax thereon should have been recovered, in the absence of applicability of section 73(3), by issue of notice u/s 73(1). An order of rejection of refund claim u/s 11B is not the proceedings to determine taxability - appellant is justified in claiming that the demand under section 73(1) is mandated to complete the proceedings and would necessarily have to be followed by an adjudication order that is legally challengeable. By not issuing a notice and a consequential order, the assessee was also denied the opportunity to challenge the contention of Revenue on taxability - the impugned order rejecting the refund claim on ground of taxability is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of sale, gift or in any other manner; or (ii) a transaction in money or actionable claim; and passed a final order of rejection on 27 th March 2015. Aggrieved by this rejection, assessee carried the matter to first appellate authority, Commissioner of Central Excise (Appeals), Nagpur who, vide order-in-appeal no. NGP/EXCUS/000/APP/908/15-16 dated 18 th February 2015, upheld the order-in-original. Hence this appeal. 3. Appellant contends that the lower authorities have failed to render a speaking order which is a requirement in accordance with the decision of the Hon'ble Supreme Court in Nestle India Ltd v. Commissioner of Central Excise Chandigarh [2009 (235) ELT 577 (SC)]. Further, as contended before the two lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute that the challenge before the Tribunal is restricted to the rejection of refund claim and that refund claim has been rejected on the ground that tax is indeed leviable. There can also be no doubt that from 1 st July 2012, with the commencement of the era of 'negative list', the decision supra would no longer guide taxability. 6. The dispute before me pertains to the rejection of refund claim and not to a decision on taxability. The latter would flow from a demand under section 73 of Finance Act, 1994 and no such challenge appears on record. Nor is there any material on record to suggest that notice for such demand was issued. 7. A refund claim may be rejected only for a limited number of reasons: at the threshold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 73 of Finance Act, 1994 is foreclosed only when, in accordance with section 73(3) of Finance Act, 1994, the assessee remits the tax and interest thereon before issue of notice. It would appear that, in the present dispute, appellant has not paid the interest due on the amount short-payment made good subsequently. Explanation 1 in section 73(3) renders the exclusion of applicability of this sub-section to the present dispute. The provision of law require invoking of section 73(1) of Finance Act, 1994, as well as section 76, when tax or interest is short-paid and the demand for tax, even if paid, must be made with consequent penal action. In these circumstances, appellant is justified in claiming that the demand under section 73(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from, or paid by him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : xxxxxx Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise and interest, if any, pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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