TMI Blog2023 (8) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim on the grounds that the documents submitted were not original and were photocopies. The original adjudicating authority has rejected the claim purely on the ground that they had not submitted the proof of payment of duty, and other supporting documents such as the bill of entry in original. Therefore, instead of appreciating or examining the grounds on which the original authority had rejected the refund claim, the appellate authority has introduced a new ground for rejection of the refund claim which was not indicated in the show cause notice. This is not acceptable. Reliance placed in SENOR METALS PVT LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE ST, RAJKOT [ 2023 (7) TMI 1115 - CESTAT AHMEDABAD] wherein it has been he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute, hence this refund claim would be kept in abeyance till the earlier claim is finally disposed. The refund amount for the earlier period was sanctioned on the basis of CESTAT Final Order No. 55734/2017 dated 01.08.2017. Thereafter, the appellant approached the Assistant Commissioner, Central Excise, Division II, Indore again vide letter dated 14.07.2020 for refund of impugned amount of Rs. 43,46,830/- on 15.11.2018. The Appellant also enclosed the copy of refund application filed by them on 23.08.2004 for Rs. 43,46,830/- along with copies of Bill of Entry and copies of TR-6 Challans, Cenvat account etc. The refund of Rs. 43,46,830/- sought vide letter dated 14.07.2020 was rejected. Being aggrieved the appellant is before this Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of refund claim in the impugned order, wherein the appellant has submitted that the same was done on a ground Which was not taken in the show cause notice. 6. I note that the Commissioner (Appeals) in para 9 of the impugned order has stated that the Bill of Entry submitted with the refund claim is the only document which indicates the payment of the differential duty under protest on account of classification dispute. For the scrutiny of bill of entry so submitted, it was noted that the assessment of import goods was provisionally assessed. He has referred to the guidelines regarding provisional assessment under section 18 of the Customs Act, 1962 wherein it has been stipulated that the provisional assessment is for the subject to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority has confirmed the demand has never been subject matter of the show cause notice and therefore, we hold that Adjudicating Authority has travelled beyond the scope of the show cause notice and therefore, violated the principles of natural justice by not disclosing the verification report to the appellant, this clearly amounts to an act of violation of the principles of natural justice. In this regard we also take note of the Hon ble Supreme Court decisions in the case of Ballarpur Industries Limited (supra) and in the case of Toyo Engineering India Limited (supra). However, we take shelter of Hon ble Gujarat High Court decision in the case of Kandarp Dilipbhai Dholkia vs. UOI 2014 (307) ELT 484 (Guj.) and reproduce the relevant portio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons for the first time in the second appeal before the Tribunal. Neither adjudicating authority nor the appellate authority had denied the facility of the project import to the respondent on any of these grounds. These grounds did not find mention in the show cause notice as well. The Department cannot be travel beyond the show cause notice. Even in the grounds of appeals these points have not been taken. 8. In view of the above, I set aside the impugned order, and remand the matter to the original authority to examine the refund claim in the light of the fact that the claim with all the relevant documents in original had been filed with the department on 23.08.2004 by the appellant. Mere observation that the payments cannot be verified ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
