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2018 (2) TMI 291

Refund claim - validity of SCN - new case made against appellant after issuance of SCN - Held that: - the decision of the Commissioner (Appeals) dated 29.03.2004 holding that the claim is within the period of limitation has become final and the Revenue has not filed appeal against the same. Therefore, the Revenue has to refund the entire amount of refund claim of ₹ 8,23,824/- whereas the Revenue has only refunded the amount of ₹ 2,22,444/- on their own. - In view of the decision of the Madras High Court in the case of Commissioner of Central Excise Vs. EL.P. EM. Industries [2017 (9) TMI 702 - MADRAS HIGH COURT] wherein it has been held that in the earlier proceedings, the adjudicating authority cannot raise the fresh ground .....

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ustoms Air Cargo Complex initially vide letter CNO 546/73/2003 Refund/10676/03 dated 22.12.03 rejected the refund claim as being hit by limitation of time. Aggrieved by the said letter, the appellant immediately preferred an appeal to the Commissioner of Customs (Appeals) contending that their claim is not time barred. In the meantime, the lower authority suo moto reconsidered their decision contained in letter CNO 546/73/2003 Refund/10676/03 dated 22.12.03 and took up the refund claim for decision on merits. During the course of verification of the relevant bills of entry, the lower authority found that there is short levy of duty in respect of four bills of entry, i.e. in the bills of entry no. 298150 and 302342, the basic customs duty an .....

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wing the appeal by the Commissioner, the respondent refused to comply with the order and through the letter Additional Commissioner again reiterated that as per hearing dated 16.09.2003 the representative of the appellant has accepted ₹ 2,22,444/- (Rupees Two Lakhs Twenty Two Thousand Four Hundred and Forty Four only) for which cheque has been issued. Thereafter the appellant filed a miscellaneous application before the Commissioner seeking direction to the Assistant Commissioner to release the refund amount. When the original authority did not comply with the order, the appellant approached the Hon ble High Court of Karnataka by way of Writ Petition No. 10391/206 for direction under the Writ of Mandamus for grant of balance refund of .....

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Department has not filed any appeal against the said order of the Commissioner (Appeals) and the Department is now bound by the said order. In support of this submission, he relied upon the following decisions: a) CCE Vs. EL.P.EM Industries - 2017 (365) E.L.T. 565 (Mad.) b) G-Tech Computer Education Centre Vs. CCE - 2017 (4) GSTL 178 (Tri.-Bang.) c) M/s. Minerals Enterprises Ltd. Vs. CCE - 2017-TIOL-4117-CESTAT-BANG. d) Boving Fouress Ltd. Vs. CCE- 2006 (202) E.L.T. 389 (SC) e) CCE, Vadodara Vs. Gujarat State Fertilizers & Chem Ltd. - 2008 (229) ELT 9 (SC) f) Union of India Vs. Kamlakshi Finance Corporation Ltd. - 1991 (55) ELT 433 (SC) 3.1. He further submitted that subsequent to the decision of the High Court, the Department cannot r .....

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tial refund of ₹ 2,22,444/- (Rupees Two Lakhs Twenty Two Thousand Four Hundred and Forty Four only) by the representative of the appellant cannot be the ground for rejecting the claim of the balance amount as there is no estoppel against law. In support of this, he relied upon the decision of the Hon ble Supreme Court in the case of Madhumilan Syntex Ltd. - 2006 (195) E.L.T. 141. 4. On the other hand the learned AR reiterated the findings of the impugned order. 5. After considering the submissions of both the parties and perusal of the material on record, I find that the decision of the Commissioner (Appeals) dated 29.03.2004 holding that the claim is within the period of limitation has become final and the Revenue has not filed appea .....

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