TMI Blog2023 (12) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... n contravention of the statutory provision. The ratio of the decision cited is squarely applicable in the present case because in the present case also, no show cause notice as required in law was issued to the appellant and no opportunity of hearing as required under law was accorded. Hence, by following the ratio of the Hon ble Apex Court decision, the rejection of refund claim of Rs. 19,55,010/- deposited by the appellant under protest is liable to be refunded to the appellant as prescribed by the law - appeal allowed. - MR. S. S. GARG, MEMBER (JUDICIAL) Present for the Appellant: Shri T.R. Rustagi , Advocate Present for the Respondent: Shri Aneesh Dewan, Authorized Representative ORDER The present appeal is directed against the impugned order dated 21.02.2018 passed by the Commissioner (Appeals) deciding two appeals of the appellant whereby the Commissioner (Appeals) has allowed the appeal against the demand of interest and imposition of penalty upon the appellant but upheld the Assistant Commissioner order rejecting the refund claim of Rs. 19,55,010/-. 2. Briefly the facts of the present case are that the appellant is engaged in the manufacture o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abassi issued a show cause notice dated 27.02.2015 to show cause as to why interest be not recovered on the amount of differential duty of Rs. 19,55,010/- thereafter, the appellant vide his letter dated 30.03.2015 replied to the Assistant Commissioner submitting that the show cause notice was hit by time bar in as much as the show cause notice related to the period March, 2012 to May, 2013 and also submitted various other reasons contesting the demand. In the meantime, the appellant made an application to the Assistant Commissioner dated 02.11.2015 requesting for refund of amount of Rs. 19,55,010/- paid under protest on the ground that no show cause notice was issued demanding the duty and no order was issued to vacate the protest. 4. After following the due process, the Assistant Commissioner vide his order dated 28.12.2015 confirmed the demand of interest on the amount of differential duty of Rs. 19,55,010/- and also imposed penalty under Rule 25 of the Central Excise Rules, 2002. Aggrieved by the said order, appellant filed the appeal before the Commissioner (Appeals) and also wrote letter dated 23.02.2016 to the Assistant Commissioner requesting for sanctioning the refund wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st as an assessee cannot be permitted to evade payment of rightful tax, the authority which recovers tax without any authority of law cannot be permitted to retain the amount merely because the tax payer was not aware at that time. 9. Further, the Ld. Consultant on this issue relied upon the following case laws which are reproduced here in below:- Gokak Patel Volkart Ltd. Vs. Collector of Central Excise 1987 (28) E.L.T. 53 (S.C.) CCE Vs. Akay Cosmetics-2005 (182) ELT 294 (SC). Collector of Customs Calcutta- Vs. Tin Plate Co. of India Ltd. 1988 (35) E.L.T. 349 (S.C.) Metal Forgings Vs. Union of India 2002 (146) ELT 241 (S.C) Balaji Vegetables Products Pvt. Ltd Vs. Collector of C.Ex. Kanpur-1999 (108) E.L.T. 802 (Tribunal) Century Metal Forgings Pvt. Ltd. Vs. Union of India- 2009 (234) ELT 234 (P H). 10. On the other hand, Ld. AR reiterated the findings of the impugned order and submitted that the letter dated 29.04.2016 issued by the Assistant Commissioner is itself an order rejecting the refund against which the appellant has right to file the appeal and in fact the appellant has filed the appeal before the Commissioner against this letter. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (1), a notice of show cause has to be issued and sub-section (2) requires that the cause shown by way of representation has to be considered by the prescribed authority and then only the amount has to be determined The Scheme is in consonance with the rules of natural justice. An opportunity to be heard is intended to be afforded to the person who is likely to be prejudiced when the order is made before making the order thereof. Notice Is thus a condition precedent to a demand under sub-section (2). In the instant case, compliance with this statutory requirement has not been made, and, therefore, the demand is in contravention of the statutory provision. Certain other authorities have been cited at the hearing by Counsel for both sides, Reference to them, we consider, is not necessary. 10. The appeal has to be allowed and the demand raised for the period 19-8-1975 to 23-2-1981 has to be set aside. There shall be no order for costs. The tax paid, if any, shall be refunded to the appellant. 12. Further, in the case of CCE Vs. Akay Cosmetics-2005 (182) ELT 294 (SC) wherein in para 47 48 the Hon ble Apex Court has observed as under : 47. In the case of Union o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondence or part of an order. The said notice must also indicate the amount demanded and call upon the assessee to show cause if he has any objection for such demand. The said notice also will have to be served on the assessee within the said period which is either 6 months or 5 years as the facts demand. Therefore, it will be futile to contend that each and every communication or order could be construed as a show cause notice. For this reason the above argument of the Revenue must fail. 14. The ratio of the decision cited (Supra) are squarely applicable in the present case because in the present case also, no show cause notice as required in law was issued to the appellant and no opportunity of hearing as required under law was accorded. Hence, by following the ratio of the Hon ble Apex Court decision cited (Supra) I am of the considered opinion that the rejection of refund claim of Rs. 19,55,010/- deposited by the appellant under protest is liable to be refunded to the appellant as prescribed by the law, accordingly, I allow the appeal of the appellant and direct the Revenue to refund the said amount along with interest as prescribed by law. Appeal is accordingly, allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
