TMI Blog2017 (11) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, I hold that the subsequent show cause notice issued by the Department being SCN No. V/15/ADJ/Noida/BTCL/77/09/13926 dated 14/09/2009 is ab initio void and accordingly quashed. The impugned Order-in-Appeal is set aside, as the same is apparently hit by the principles of doctrine of merger and hierarchy of Courts. Appeal allowed - decided in favor of assessee. - E/2754 & 2935/2009-EX[SM] - A/71447-71448/2017-SM[BR] - Dated:- 3-11-2017 - Mr. Anil Choudhary, Member (Judicial) Shri Prashant Mishra (Advocate) for Appellant/Assessee Shri Pawan Kumar Singh (DR) for Respondent/Commission ORDER Per: Anil Choudhary These cross appeals have been preferred against order of the Commissioner (Appeals) dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder-in-Original No.60/DC/N-V/06 dated 09/05/2006 holding the refund amount as admissible to Appellants and sanctioned the same accordingly. However, while sanctioning the refund claim of ₹ 17,25,392/- to Appellants, he ordered its appropriation towards the outstanding demand(s) on arrears, pending against them. The Appellants again went in appeal against the aforesaid Order-in-Original No. 60/DC/N-V/06 dated 09/05/2006 against appropriation of refund amount, towards pending demands of arrears. The Commissioner (Appeals) vide Order-in-Appeal No. 118-CE/Appl/Noida/06 dated 10/08/2006 remanded the case to the Adjudicating Authority with the direction to decide the issue afresh keeping in view the above facts and orders of the Hon ble Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that refund cannot be rejected on the ground of unjust enrichment as it has arisen out of provisional assessment finalized prior to 26/06/1999 on which date the provisions of unjust enrichment were made applicable to the scheme of provisional assessment. It is urged that if the order of finalization of provisional assessment under Rule 9B(5) is appealed against, then any refund claim arising as a consequence of the decision of such appeal would be governed by Section 11B, implying thereby that such a claim would be subject to bar of unjust enrichment. Revenue also placed reliance on the ruling of Hon ble Supreme Court in Sahakari Khand Udyog Mandal, 2005 (181) E.L.T. 328 (SC) wherein it was held that even if it is considered that refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity to be heard, which have not been followed, causing prejudice to the Appellants - assessee. 9. Accordingly, I dismiss the appeal filed by the Revenue, having no merits. The appeal of the assessee is allowed to the extent that the adjustments made by the Courts below, out of the refund and interest are set aside and remanded with the direction to issue a fresh show cause notice, giving the details of the adjustments proposed to be made. Thereafter, the Appellants shall be given at least one months opportunity to reply to such show cause notice and to lead evidence in their answer to the show cause notice. Such show cause notice shall be decided after hearing the Appellant in accordance with law. For this purpose, I remand the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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