2017 (9) TMI 1393 - AT - Customs

Refund of SAD - N/N. 102/2007 - natural justice - case of appellant is that they were not issued with a deficiency memo or SCN or given a personal hearing before passing the adjudication order - Held that - it is evident that appellant has not been given a chance to defend his case - also, an opportunity of personal hearing was not given - it is fit to remand the matter, so as to give opportunity to the appellant to establish his case - appeal allowed by way of remand.

Summary

Issues:
Refund claim rejection without issuance of deficiency memo or SCN, eligibility of refund under Notification No.102/2007, fulfillment of conditions for refund, remand for appellant to establish case.

Analysis:
The appellant filed a refund application seeking refund of SAD under Notification No.102/2007. The adjudicating authority partially rejected the refund claim without issuing a deficiency memo or show cause notice (SCN) or providing a personal hearing to the appellant. The appellant sought the refund of &8377; 7,44,469.20, but only &8377; 2,25,880/- was sanctioned, rejecting &8377; 5,18,590/-. The rejection was upheld in appeal, leading to the current appeal.

The appellant's counsel argued that the appellant could establish eligibility for the refund if given the opportunity to produce necessary documents. Due to the lack of a deficiency memo or SCN, the appellant was unable to defend the case adequately or provide the required documents to support the claim. On the other hand, the respondent reiterated that the conditions for refund, as per Board Circular No.16/2008, were not fulfilled by the appellant, justifying the rejection of the refund claim.

After considering the submissions from both sides and reviewing the records, it was evident that the appellant was not afforded a fair chance to defend the case. The appellant was not issued a deficiency memo or SCN outlining the grounds for rejection of the refund claim, and no personal hearing was provided. The appellant expressed the ability to furnish documents to prove eligibility for the refund. The Tribunal found it appropriate to remand the matter to give the appellant an opportunity to establish their case properly.

Additionally, the Tribunal noted that the rejection was based on the appellant's failure to meet a condition mentioned in a Board circular, clarifying that such circulars are not binding on the assessee. The adjudicating authority was directed to provide sufficient time for the appellant to submit the necessary documents and to conduct a personal hearing. Consequently, the appeal was remanded to the adjudicating authority for fresh adjudication in light of the observations made. The matter was disposed of accordingly.