TMI Blog2018 (9) TMI 1590X X X X Extracts X X X X X X X X Extracts X X X X ..... m without issuance of show cause notice cannot sustain - appeal allowed - decided in favor of appellant. - Appeal Nos. ST/2 and 3/2010 - Final Order Nos. 42188-42189/2018 - Dated:- 31-7-2018 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri Raghavan Ramabhadran, Advocate for the Appellant Shri S. Govindarajan, AC (AR) for the Respondent ORDER Per Bench The issue involved in both the appeals being the same, they were heard together and are disposed by this common order. 2. Brief facts are that the appellants filed two refund claims under Notification No. 41/2007-ST dated 6.10.2007 for an amount of ₹ 18,82,402/- and ₹ 6,54,085/- being the service tax p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f time bar is only with respect to the refund claim for the quarter ending January to March 2008. This is because the appellant had originally filed before wrong forum. With regard to the refund claim for both the periods January to March 2008 and April 2008 to June 2008, the original authority as well as the Commissioner (Appeals) has rejected the refund claim stating that the appellant was not maintaining common books of accounts in respect of all their exports pertaining to all their factories, they did not have a break-up of the amount of input service pertaining to each factory. Therefore, while claiming the refund claim, they apportioned the input services in terms of the turnover of each factory and filed respective refund claim with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first time and therefore the same cannot be entertained. He prays for remanding the matter for issuance of show cause notice and for reconsideration of the refund claims. 6. Heard both sides. 7. The main contention put forward by the ld. counsel for the appellant is that they have not been issued a show cause notice proposing to deny the refund claim. Thus, they were prevented from putting forward their defense for establishing their case. In case, the department had issued a show cause notice, they would have been able to defend the case and also furnish necessary documents to prove their case and therefore the same has resulted in violation of natural justice. He also adverted to the letter dated 3.11.2008, wherein the appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without any substantiation, by the original authority in according sanction to the claim for refund in the absence of challenge to the assessment itself, we note with disapproval that the claim has been disposed of without placing the claimant on notice. The scheme of Section 27 of Customs Act, 1962 empowers the Assistant Commissioner to sanction the refund, subject to his satisfaction, by transfer of the amount to the Fund‟ or by releasing it to the claimant. Admittedly, it does not prescribe issue of a show cause notice but it does admit to disallowing of claims that are not to the satisfaction of the authority. It is settled law that claim may be rejected and, concomitantly, settled law insists that detriment cannot be visited upo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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