2018 (6) TMI 1344 - AT - Central Excise

Refund claim - appellant reversed the said credit under protest by debiting the credit in RG-23A Part-II, vide Entry No. 1396 dated 15 January, 1999 - rejection of refund claim in the ground of time limitation - Held that - SCN was issued in June, 2004, which is ab initio void and not permissible under the provisions of the Central Excise Act and the Rules thereunder. For a settled issue pursuant to Order-in-Appeal which is not further challenged in appeal before Higher Court, the issue cannot be reopened by issue of a fresh show cause notice. SCN dated 9 June, 2004, is illegal and ab initio void - appeal allowed - decided in favor of appellant.

Issues:
1. Cenvat Credit availed by the appellant during the financial year 1998-99.
2. Refund claim rejected on the ground of time bar.
3. Taking credit objected to by Revenue on the grounds of unjust enrichment.
4. Appeal against the Order-in-Appeal dated 14 November, 2003.
5. Legality of the show cause notice issued in June 2004.

Analysis:
1. The appellant availed Cenvat Credit amounting to ?41,701 based on invoices issued by Steel Authority of India to their sister concern, which was then reversed under protest due to objections raised by the Revenue. The Deputy Commissioner rejected the refund claim on the grounds of time bar and incorrect invoicing. The Commissioner (Appeals) allowed the appeal, stating that since the credit was reversed under protest, the limitation period did not apply. The Commissioner further noted that the invoices were issued to the sister unit of the appellant, and there was no dispute regarding the receipt and consumption of goods by the appellant, thus upholding the legality of the credit availed.

2. Subsequently, the appellant reflected the credit in their return for December 2003, which was objected to by Revenue citing unjust enrichment concerns and legal precedents. The Assistant Commissioner, however, found that the appeal had already been allowed by the Commissioner (Appeals) in November 2003, and the refund had been granted accordingly. The Assistant Commissioner deemed the show cause notice improper, as the matter had already been settled and the refund granted, leading to the dropping of further proceedings.

3. Revenue appealed the Assistant Commissioner's decision, arguing that the refund was time-barred and affected by unjust enrichment. The Commissioner (Appeals) sided with Revenue, disallowing the refund to the assessee. The appellant then approached the Tribunal, challenging the decision.

4. Upon hearing the parties, the Tribunal found the show cause notice issued in June 2004 to be void and impermissible under the Central Excise Act and Rules. The Tribunal noted that the Order-in-Appeal dated November 2003 had been accepted by the Department without further appeal, and the refund was granted accordingly. As the issue had been settled and not challenged further, the Tribunal deemed the subsequent show cause notice illegal and void, setting aside the impugned order and allowing the appeal, granting the appellant consequential reliefs as per the law.

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