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2023 (10) TMI 900 - AT - CustomsRefund of SAD paid at the time of importation - rejection on the ground that the appellant did not pay VAT/Sales Tax while selling the goods in the domestic market - non-fulfilment of conditions as stipulated in the Notification No.102/2007 dated 14.09.2007 - appeal is barred by limitation as they have filed the appeal beyond the period of limitation as prescribed under section 128 of the Customs Act, 1962. HELD THAT - On limitation the Ld.Commissioner(Appeals) observed that the adjudication order was dispatched on 02.04.2014 through Speed Post whereas in reply to the RTI, it is stated by the department that the adjudication order has been received by one Shri Puroshattam Giri on 01.04.2014. In that circumstances, there is contrary observations made by the Ld.Commissioner(Appeals). Moreover, the Ld.Commissioner(Appeals) mentioned the letter dated 09.06.2014 as 09.04.2014 and to that effect the appellant has filed an affidavit before this Tribunal stating that Shri Puroshattam Giri neither an employee of the appellant nor the appellant has authorized any person to collect the adjudication order and that affidavit is filed on oath, therefore, the benefit of doubt goes in favour of the appellant that they have received the adjudication order on 09.06.2014 as claimed and against the said order the appeal has been filed before the Ld.Commissioner(Appeals) on 19.08.2014, which is well within the condonable period in terms of Section 28 of the Customs Act, 1962. The appeal filed by the appellant before the Ld.Commissioner(Appeals) is not time barred. On that ground the appellant succeeds. The Ld.Commissioner(Appeals) has held that the refund claims are not maintainable on merits, as the same are time barred - It is found that there is no allegation in the show cause notice issued to the appellant that why not the refund claims be rejected as time barred. The adjudicating authority as well as the Ld.Commissioner(Appeals) has gone beyond the allegation in the show cause notice, which is not permissible in law, therefore, on merit also, the refund claim cannot be rejected as time barred as there is no allegation in the show cause notice - the impugned orders set aside - appeal allowed.
Issues Involved:
1. Refund claim rejection based on non-payment of Sales Tax/VAT and limitation period. 2. Allegation of time-barred appeal and rejection of refund claims on merit. Summary: The judgment by the Appellate Tribunal CESTAT KOLKATA involved a case where the appellant, an importer of shoes, filed refund claims for SAD paid at the time of importation. The Revenue alleged that the appellant did not pay Sales Tax/VAT while selling the goods domestically, questioning the eligibility for refund. The Tribunal previously dismissed the Revenue's stay application and held that the appellant is entitled to a refund if both CVD and Sales Tax/VAT obligations are met. In the second round of litigation, the adjudicating authority rejected the refund claims as time-barred, a ground not alleged in the initial show cause notice. The Commissioner(Appeals) upheld the rejection on both merit and limitation. However, discrepancies in dispatch dates and receipt of orders led the Tribunal to rule in favor of the appellant. The Tribunal found that the rejection on limitation grounds was not sustainable as it was not mentioned in the show cause notice. Therefore, the appeals were allowed, and the refund claims were upheld. Separate Judgment: - The judgment was delivered by HON'BLE SHRI ASHOK JINDAL, MEMBER (JUDICIAL) and HON'BLE SHRI RAJEEV TANDON, MEMBER (TECHNICAL).
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