TMI Blog2021 (11) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... n and consequent appeal (whereby the demand was set aside), the appellant ought to have filed the refund claim within a period of one year, since the Department has adjudicated the Show Cause Notice for a second time and confirmed the demand again, it cannot be said that the refund claim filed by the appellant is time-barred. The refund claim is filed within one month after passing of the second Order-in-Appeal which is dated 27.02.2018. The claim having been made within one year from the date on which the demand was set aside by the Commissioner (Appeals) finally, the rejection of refund claim as time-barred under Section 11B of the Central Excise Act, 1944 is not justified. Moreover, the amount having been paid as duty pursuant to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 was issued proposing to demand Excise Duty on such waste and scrap cleared by the appellant. On receipt of the Show Cause Notice, the appellant paid the duty and intimated the same to the Department vide letter dated 22.09.2009. Thereafter, the appellant had opted for Large Taxpayer Unit (LTU) scheme from September 2009 and all the files were transferred to LTU, Mumbai. 5. Thus, the Assistant Commissioner, LTU, Mumbai adjudicated the Show Cause Notice vide Order-in-Original dated 05.03.2012 whereby the demand of ₹ 7,54,303/- was confirmed along with interest and imposed penalty. The amount already paid by the appellant was appropriated. Aggrieved by such order, the appellant filed appeal before the Commissioner (Appeals), LTU, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l dated 28.03.2013. The Commissioner (Appeals), Coimbatore, vide Order-in-Appeal No. CMB-CEX-000-APP-053-18 dated 27.02.2018 set aside the Order-in-Original dated 20.11.2017 being null and void ab initio and allowed the appeal of the appellant. 8. The appellant then filed a claim for refund dated 23.03.2018 of the amount paid in regard to the above Show Cause Notice. 9. The Department issued Show Cause Notice dated 19.07.2018 proposing to reject the refund claim as being time-barred; it was also held by the Original Authority that the appellant has not established that the incidence of duty has not been passed on and thus failed to pass the test of unjust enrichment. After adjudication, the refund claim of the appellant for ₹ 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Department. He supported the findings in the impugned order. 12. Heard both sides and perused the records. 13. From the narration of facts, it is clear that the litigation with regard to the demand raised in the Show Cause Notice dated 06.08.2009 has continued till 27.02.2018 whereby the Commissioner (Appeals), Coimbatore has set aside the demand, interest and penalties confirmed in the Order-in-Original. Though after the first adjudication and consequent appeal (whereby the demand was set aside), the appellant ought to have filed the refund claim within a period of one year, since the Department has adjudicated the Show Cause Notice for a second time and confirmed the demand again, it cannot be said that the refund claim filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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