TMI Blog2018 (2) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... AS HIGH COURT] wherein it has been held that in the earlier proceedings, the adjudicating authority cannot raise the fresh ground for which the assessee has not been given any notice. Appeal allowed - decided in favor of appellant. - C/532/2009-SM - Final Order No. 20030 / 2018 - Dated:- 9-1-2018 - Shri S. S. Garg, Judicial Member Shri V. Raghuraman, Advocate For the Appellant 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 presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 and 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 ₹ 8,23,824/- (Rupees Eight Lakhs Twenty Three Thousand Eight Hundred and Twenty Four only) the balance amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 matter in accordance with the law within three months. As per the direction of the Hon ble High Court, the Deputy Commissioner of Customs vide Order-in-Original No. 84/2008 dated 12.08.2008 rejected the refund claim stating that all representation of the appellant has been disposed of in terms of order dated 16.02.2004 and 02.07.2004 which stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 raise fresh grounds for rejecting the refund. He further submitted that the original authority has now raised new grounds which are not permissible under law for rejecting the refund claim. He further submitted that the findings of the original authority is clearly beyond the scope of the proceedings of refund claim since the discrepancies stated in the Order-in-Original were not informed to the appellant and no new case could be made against the appellant for which the appellant had no notice. In support of this submission, he relied upon the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 appeal against the same. Therefore, the Revenue has to refund the entire amount of refund claim of ₹ 8,23,824/- (Rupees Eight Lakhs Twenty Three Thousand Eight Hundred and Twenty Four only) whereas the Revenue has only refunded the amount of ₹ 2,22,444/- (Rupees Two Lakhs Twenty Two Thousand Four Hundred and Forty Four only) on their own. Further I find that in view of the decision of the Madras High Court in the case of Commissioner of Central Excise Vs. EL.P. EM. Industries - 2017 (356) E.L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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