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Waters (India) P. Ltd. Versus Commissioner of Central Excise, Service Tax And Customs

2018 (2) TMI 291 - CESTAT BANGALORE

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 .....

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llant Shri Parasivamurthy, Deputy Commissioner (AR) For the Respondent ORDER Per : S. S. Garg The present appeal is directed against the impugned order dated 30.04.2009 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the appeal of the appellant and upheld the Order-in-Original. Briefly the facts of the present case are that the appellants imported components/accessories and spares for the manufacture and maintenance of high performance liquid chromatographs s .....

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pellant filed a claim for refund of extra duty deposit of ₹ 8,23,824/- (Rupees Eight Lakhs Twenty Three Thousand Eight Hundred and Twenty Four only) in respect of 28 bills of entry finally assessed on 22.08.2002. The Assistant Commissioner of Customs 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 Commissione .....

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d CVD were reflected as nil by the appellants whereas it should have been charged at 25% and 16% respectively and in bills of entry no. 297476 and 297485, as per the SVB order, the loading should have been 5% but has been loaded only by 1% and the same was explained to the appellants vide letter C. No. S 46/73/2003 Refunds dated 30.08.2003 as well as during the personal hearing on 16.09.2003. After adjusting the amounts which were short collected from the original refund claim of ₹ 8,23,82 .....

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preferred an appeal before the Commissioner (Appeals) contesting the issue of refund being barred by limitation and the Commissioner (Appeals) vide its order dated 29.03.2004 allowed the appeal stating that the relevant date is when the end use bond was discharged and cancelled on 04.03.2003 and the refund claim has been resubmitted on 19.06.2003 which is well within the limitation period of six months. Accordingly the Commissioner (Appeals) set aside the order and allowed the appeal. After allo .....

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e 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 ₹ 6,01,380/- (Rupees Six Lakhs One Thousand Three Hundred and Eighty only) and the Hon ble High Court without expressing any opinion on merits of the case disposed of the case with the direction to the Assistant Commissioner to consider the ma .....

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Twenty Two Thousand Four Hundred and Forty Four only). Thereafter the appellant filed an appeal before the Commissioner and the Commissioner (Appeals) vide order dated 30.04.2009 rejected the appeal. Hence the present appeal. 2. Heard both the parties and perused the records. 3. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the facts and the law in the right perspective and also without considering t .....

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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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n support of this submission, he relied upon the following decisions: a. Alang Marine Ltd. Vs. CCE 2006 (204) E.L.T. 297 (Tri.-Mum.) b. Vaspar Concepts (P) Ltd. V. CCE 2006 (199) ELT 711 (Tri.-Bang.) c. Punjab Communications Ltd. Vs. CCE 2006 (199) E.L.T. 161 (Tri.-Del.) d. Birla Copper Vs. CCEx, Vadodara 2005 (191) E.L.T. 239 (Tri.-Mum.) 3.2. He further submitted that the entire refund proceedings have been conducted without adhering to the principles of natural justice since all information an .....

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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 sub .....

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