TMI Blog2022 (3) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 11.10.2017 03.11.2017, the said findings are factually incorrect. Time Limitation - HELD THAT:- The relevant date as per Explanation B thereof in the given facts and circumstances is sub-clause (ec) thereof (as quoted above). Apparently and admittedly, the refund claim was initially filed on 30.08.2018 pursuant to the CESTAT Order dated 11.10.2017 and 03.11.2017. Relevant date for the refund claim is therefore, the date of aforesaid orders. Hence, it is held that claim of 30.08.2017 is well within the one year of the said relevant date. It is accordingly held that the refund claim has wrongly been held to be barred by time. Rejection thereof is liable to be set aside. The Department is again directed to calculate and compute the duty only on the basis of the days during which each of the machines were working and thus to strictly comply with the directions already given by the earlier orders of this Tribunal. Since admittedly an amount of ₹ 19,00,000/- has already been deposited. The Department has only to verify whether the amount of impugned refund claim of ₹ 9,50,000/- is correctly calculated by the appellant for the period of closure of one of the machi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the directions of denovo adjudication. Post said orders of CESTAT, the appellant filed the refund claim on 30.07.2018 for the first time which was returned as premature as the adjudicating authority could not adjudicate after aforesaid directions of remand. Finally remand claim was filed on 18.04.2019. However, Department issued a fresh SCN dated 19th June, 2019 proposing the rejection of the refund on the ground of it being barred by time. The said proposal was confirmed by OIO dated 30.04.2020. The appeal thereof has been rejected vide OIA No.87 dated 23.04.2021. 1.2 The Original adjudicating authority pursuant to the directions passed the order dated 31.01.2019 confirming the duty liability of the month of March, 2012, May 2012, July, 2012 and August 2012 in respect of two machines for ₹ 17,99,193/- as against the demand in SCN for ₹ 59,45,966/- Since appellant had already deposited ₹ 24,73,388/- that the differential amount (after deduction of ₹ 17,99,193) was held to be admissible to refund. But the refund was rejected on the ground of it being barred by time, as mentioned above. Being aggrieved the appellant is before this Tribunal. 2. I have h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mentioned that the refund in question was held not only being barred by time but was also held to have been hit due to principle of unjust enrichment of the appellant. Submitting no infirmity in the order under challenge, ld. DR has requested for dismissal of the impugned appeal. 4.1 In rebuttal the authorized representative of the appellant mentioned that the ground of unjust enrichment was never raised in the impugned SCN. Hence the findings being out of the scope of SCN are liable to be set aside appeal is again prayed to be allowed. 5. After hearing the rival contentions of the parties, I observe and hold as follows:- The order under challenge i.e. Order in Appeal No.87.JPR/2021 dated 23.05.2021/ 10.05.2021 is an order passed after two earlier rounds of litigation in the present case. As observed in the narrated facts above, the initial controversy arose from SCN of 26.12.2012 where the duty paid by the appellant calculated on the basis of number of working days for the machines used by the appellant for making pouches was alleged to be short on the ground that the duty paid on Compound Levy Basis was held to include the period of closure also. Though the Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of remand as far as the deduction of amount of duty calculated for non-working of second number of machines. Hence, the order passed pursuant to order of remand dated 11.10.2017 is held to have been passed in sheer violation of the directions of the said remand order. Similarly, Order in Original at second round of litigation dated 30th April, 2020 is observed to be in sheer violation of another final order of remand passed by this Tribunal dated 18.02.2020. The Hon ble High Court of Karnataka, Bangalore Bench in the case of XL Health Corporation India Pvt. Ltd. vs. Union of India Others W.P. No.37514/2017 decided on 22.10.2018 by High Court of Karnataka has held as follows:- The adjudicating authorities throwing to the winds the principles of judicial discipline by not following the binding order passed by higher forum reflects total callous negligent and disrespectful behaviours. The Court held that same cannot be tolerated If this kind of lack of judicial discipline which if goes unpunished will lead to more litigation and chaos and such public servants are actually threat to the society. 8. The order under challenge has upheld the Order-in-Original dated 30th A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : ... Explanation. - For the purposes of this section, - (A) refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) relevant date means , - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f aforesaid orders. Hence, it is held that claim of 30.08.2017 is well within the one year of the said relevant date. It is accordingly held that the refund claim has wrongly been held to be barred by time. Rejection thereof is liable to be set aside. 11. Consequent to these finding, the SCN of 19th June, 2019 itself is held to have no cogent basis. The order under challenge is accordingly, hereby set aside. The Department is again directed to calculate and compute the duty only on the basis of the days during which each of the machines were working and thus to strictly comply with the directions already given by the earlier orders of this Tribunal. Since admittedly an amount of ₹ 19,00,000/- has already been deposited. The Department has only to verify whether the amount of impugned refund claim of ₹ 9,50,000/- is correctly calculated by the appellant for the period of closure of one of the machines of the appellant during the impugned period of four months i.e. form March, 2012 to July 2012. Since the amount for the closure dates has already been held deductible from the amount already paid, the Department has to refund the said amount subject to the small verifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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