TMI Blog2023 (11) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal/memorandum of cross-objections on behalf of Revenue, a fresh ground entered by Learned Authorized Representative does not merit consideration. The original authority has premised ineligibility with the finding that the date of sale of goods being undisputedly after the levy came into force, there is no alternative but for duty to be discharged. This is an improper appreciation of the nature of this levy and, more so, on induction of impugned goods into the list of taxable goods. Being a tax on manufacture, goods produced prior to the levy having come into force are not to be subjected to duties of central excise - stock transfer , as an internal nomenclature, has nothing to do with clearance of goods which would be subjected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (AR) for the respondent ORDER M/s Ginza Industries Ltd, a manufacturer of branded garments and excluded from liability to duties of central excise by notification no. 30/2004-CE dated 9th July 2004, claimed to have paid duties on stock manufactured prior to 1st March 2011 and lying unsold in their warehouse owing lack of clarity in law and, consequent upon communication dated 25th March 2011 of Central Board of Excise Customs (CBEC) from F No. B-1/3/2011-TRU, filed claim for refund of ₹ 95,169 out of the liability of ₹ 3,06,745 paid for clearances of March 2011 upon rescinding of benefit of exemption to branded garments vide notification no. 12/2011-CE dated 1st March 2011. The appellant claimed that details of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate authority, citing the essentials of prescribed documents and of the bar of unjust enrichment , held that lack of evidence to substantiate the latter warranted rejection of the claim. Learned Authorized Representative came up with the proposition that the refund can be claimed in cases of self-assessment for duty leviability only by challenge to assessment as held by the Hon ble Supreme Court in ITC Ltd v. Commissioner of Central Excise, Kolkata-IV [2019 (368) ELT 216 (SC)]. 5. It is well-settled that show cause notice is the foundation of all proceedings and in appellate disposal, only the issue in appeal may be argued or abetted. Failure to challenge assessment as an impediment to sanction of refund was not an issue thus far in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific aspect referred to in the order of the original authority is restricted to goods lying in the registered factory premises as on date of imposition of levy which, uncontestedly, is not the issue here. The explanation therein relating to private store room in conjunction with clearance at nil rate of duty is mere clarification and cannot be taken as intent to levy duty on goods that are, without doubt, outside the factory even though under the ownership of assessee. That would be travesty of law. The finding of the original authority does not meet the test of law. 8. As the impugned goods were not dutiable, eligibility for refund should follow. The claim of the appellant being that duty had, nonetheless, been discharged, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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