9911796707
TMI Blog2018 (6) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the other at A/4/2, South Side of G.T. Road, Industrial Area, Ghaziabad. The appellant availed Cenvat Credit of Rs. 41,701/- on the strength of Invoice No. 1152 - 236 dated 18.04.1998, No. 1152 - 244 dated 28.04.1999 and No. 1152 - 247 dated 21.04.1998 issued by Steel Authority of India (Durgapur Steel Plant). The said invoice was in the name of its sister concern Goyal Gases Ltd., Ghaziabad and consignee -M/s Goyal M.G. Gases, Ghaziabad - appellant. As the invoice was not in the name of appellant, credit taken was objected to by Revenue. The appellant reversed the said credit under protest by debiting the credit in RG-23A Part-II, vide Entry No. 1396 dated 15 January, 1999. Thereafter, the appellant filed a refund claim pursuant to whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1 return for the month of December, 2003. Such taking of credit was objected to by Revenue resulting in issuance of Show Cause Notice No. 3/2005 - 06 issued mainly on the ground of unjust enrichment, as it appeared to the Revenue in view of the order of the Apex Court in Mafatlal Industries Ltd., vs. Union of India 1997 (89) ELT 247 (SC). The SCN also relied on the ruling in the case of Union of India vs. Solar Pesticides Private Ltd., reported at 2000 (116) ELT 401. The said SCN was adjudicated whereby the Assistant Commissioner recorded the finding that the appeal of the appellant-assessee was allowed by Commissioner (Appeals) vide order dated 14 November, 2003. Further on the basis of the said Order-in-Appeal, the Assistant Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which is ab initio void and not permissible under the provisions of the Central Excise Act and the Rules thereunder. Admittedly, the order of Commissioner (Appeals) dated 14 November, 2003, was accepted by the Department and no further appeal was filed. Further in acceptance of the said Order-in-Appeal the refund was granted vide Memorandum Order No. 23/2004 - 05 dated 31 May, 2004. Thus, for a settled issue pursuant to Order-in-Appeal which is not further challenged in appeal before Higher Court, the issue cannot be reopened by issue of a fresh show cause notice. Accordingly, I hold the show cause notice dated 9 June, 2004, is illegal and ab initio void. In this view of the matter I set aside the impugned order and allow the appeal. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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