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TMI Blog2023 (12) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of this product namely, whether it should be classified under chapter 30 as claimed by the appellant or under heading 13.02 as per the department's view. After adjudication of the show cause notice, the Assistant Commissioner confirmed demand of short payment of the differential duty of Rs. 2,71,108/- for the period October 2010 to February 2012. Aggrieved by the said order, the appellant filed the appeal before the Commissioner who upheld the order and thereafter the appellant filed the appeal before the Tribunal and the said appeal remain pending till 2022. 3. When appellant filed application for withdrawal of the appeal under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 and the same was allowed to be withdrawn, thereafter, Superintendent, Derabassi vide his letter dated 07.01.2014 wrote to the appellant to deposit an amount of differential duty of Rs. 19,55,010/- for the period April, 2012 to May, 2013 when no proceedings were initiated by way of a demand show cause notice for this particular period. Although, no show cause notice was issued demanding differential duty by Assistant Commissioner but still the Range officer insisted upon the appellant to pay the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-mature stage." 5. Thereafter, the appellant wrote letters dated 05.05.2016 and 08.06.2016 requesting the sanctioning authority to either sanction the refund or pass an appealable order, thereafter, the appellant filed appeal on 28.06.2016 to the Commissioner (Appeals) against Assistant Commissioner Orders dated 29.04.2016. Commissioner (Appeals) decided both the appeals of the appellant by a common order dated 21.02.2018. He allowed the appeal against demand of interest and imposition of penalty upon the appellant. However, he affirmed the order of Assistant Commissioner rejecting the refund claim of Rs. 19,55,010/-. Aggrieved by the said order, the appellant has filed the present appeal. 6. Heard both the parties and perused the record. 7. Ld. Consultant, T.R. Rustagi, appearing for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without appreciating the facts of the case and the law and the binding judicial precedents. He further submitted that the order passed by the Commissioner (Appeals) upholding the denial of refund of Rs. 19,55,010/- by the Assistant Commissioner is illegal. He further submitted that while in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntested by the appellant by filing the appeal and the same was confirmed in the appeal, thereafter the appellant filed the appeal before the Tribunal and during the pendency of that appeal, the appellant availed the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 and their appeal was allowed. When the appeal was pending, the Superintendent, Derabassi vide his letter dated 07.01.2014 asked the appellant to deposit the differential duty of Rs. 19,55,010/- without issuing the show cause notice which was paid by the appellant under protest and thereafter, the department also demanded interest on the said amount of Rs. 4,08,844/- which was also challenged by the appellant before the Commissioner (Appeals) who dropped the demand of interest on time bar. Since, no show cause notice was issued with regard to demand of differential duty of Rs. 19,55,010/- the appellant requested the Assistant Commissioner to pass the appealable order when the said order was not passed; the appellant filed refund claim which was rejected vide letter dated 29.04.2016 by the Assistant Commissioner, further I find that the main issue involved in this case is demand of differential duty of Rs. 19,55,010/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposed and, therefore, post-facto show cause notice cannot be regarded as adequate in law. 48. Applying the said judgment to the facts of the present case, we hold that the demand for differential duty for the period 1/88 to 8/88 without issue of show cause notice under Section 11A was unsustainable. Absence of show cause notice was not disputed. In the circumstances, the Tribunal was right in setting aside the demand for differential duty amounting to Rs. 1,59,606.22 for the said period. 13. Further, I find that in the case of Metal Forgings Vs. Union of India - 2002 (146) ELT 241 (S.C) wherein para 10 the Hon'ble Apex Court has observed as under: 10. It is an admitted fact that a show cause notice as required in law has not been issued by the Revenue. The first contention of the Revenue in this regard is that since the necessary information required to be given in the show cause notice was made available to the appellants in the form of various letters and orders, issuance of such demand notice in a specified manner is not required in law. We do think that we cannot accede to this argument of the learned Counsel for the Revenue. Herein we may also notice that the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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