TMI Blog2018 (5) TMI 1343X X X X Extracts X X X X X X X X Extracts X X X X ..... sed material fact from the department - the extended period is not invokable in the facts and circumstances of the case. The refunds sanctioned to the appellant have already attained finality as the same have not been challenged - in the light of the decision of the Hon’ble Apex Court in the case of Priya Blue Industries [2004 (9) TMI 105 - SUPREME COURT OF INDIA], when the Hon’ble Apex Court has observed that The words "in pursuance of an Order of Assessment" only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g duty and then claiming refund as per the exemption notification No. 56/2002-C.E., dated 14-11-2002 is not legally correct and the refund taken has to be paid back to revenue. 3. Shri P.S.Pruthi, ld. Consultant (Former Member (Technical) appeared on behalf of the appellant. The bench objected appearance of Shri P.S.Pruthi, ld. Consultant being the Member of this Tribunal. In response to this objection, Shri P.S.Pruthi has relied upon the judgment in the case of Trimex Sands Pvt.Ltd. in Customs Appeal No.30774-3076/2017 and E/30911/2016 vide Order No.31750- 31753/2017 dated 6.11.2017 wherein this Tribunal has observed as under:- 2. We have considered the submissions of learned Counsel and observe that Section 35Q of Central Excise Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eased to hold office during the probation period. This issue came up for determination before Honble Delhi High Court in the case of Union of India Vs. Ramesh Nair W.P. (C) 7112/2013. The judgment in that case was delivered on 2nd December 2013, wherein the Honble high Court held that a Member, CESTAT who demits office while on probation is not barred from appearing before CESTAT. The Honble High Court held that only a Member of Tribunal who is confirmed to hold office in such capacity can be said to have ceased to hold the sameand therefore the provisions of section 129(6) of the Act would not be attracted in the case of a Member who was not confirmed in his post. The relevant extracts of the judgment are cited below: - 17. Thus, on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have ceased to hold the same. Since a probationer does not acquire any lien on the post of Member before its confirmation, there is no question of his ceasing to hold the same. 27. The challenge to the vires of Section 129(6) before this Court and the Supreme Court was made by officers of the Indian Customs and Central Excise Service who were also working as Member (Technical) in CAGET/CESTAT on different dates. Some of them were repatriated to parent department from CAGET and some them demitted office as Member (Technical) in CAGET/CESTAT. In that way the ratio of the opinion of the Supreme Court in N.K.Bajpai's case (supra) would not be of relevance while deciding the issue raised by the respondent before the Tribunal. In other wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to appear before CESTAT as authorized representative/consultant of the clients. Therefore, the bench had allowed Shri P.S.Pruthi to argue the matter. 4. Now Shri P.S.Pruthi has no dispute on the classification of the impugned goods under heading 3808 9340 of Central Excise Tariff Act which are exempted. He prayed that in that the extended period of limitation is not applicable as whole of the demand in this case has been confirmed by invoking the extended period of limitation. As for the period April, 2005 to November, 2008, show cause notice has been issued on 16.9.2009 by invoking the extended period of limitation. As the appellant has explained their process of manufacture of the said goods which was known to the Revenue an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so took place and refunds were sanctioned to the appellant. Therefore, it cannot be said that the appellant has suppressed material fact from the department. Therefore, we hold that the extended period is not invokable in the facts and circumstances of the case. Therefore, the demands for the extended period are set aside. 6. We further find that the refunds sanctioned to the appellant have already attained finality as the same have not been challenged. Therefore, in the light of the decision of the Hon ble Apex Court in the case of Priya Blue Industries (supra), when the Hon ble Apex Court has observed as under:- 6 . We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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