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TMI Blog2015 (2) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the appellant. As appellant has not challenged the said order and failed to prove that they have not passed the incidence of duty to the buyer, therefore they are not entitled to refund claim as made by the appellant. Aggrieved from the said order, appellant is before me. 2. The ld. counsel appearing on behalf of the appellant submits that assessment for the Financial year 2002-2003 was finalized on 15.01.2004. Thereafter the show cause notice was issued to the appellant on 29.10.2004 for the same period. In these circumstances, the order dated 15.01.2004 becomes non est and non operative. Therefore, they are entitled for the refund claim filed by the appellant as the impugned orders have been passed on the grounds that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue Industries Ltd. Vs. C.C. (Preventive)-2004 (172) E.L.T. 145 (SC) and in the case of C.C.E. Kanpur Vs. Flock (India) Pvt. Ltd.-2000 (120) E.L.T. 285 (SC). Therefore, the refund claim is rightly rejected by both the lower authorities. 4. Heard the parties and considered the submissions. 5. In this case it is no doubt that assessment has been finalized upto spindle stage on 15.01.2004. Thereafter, the show cause notice was issued to the appellant for the same period although on some other ground. It is the contention of the appellant that when assessment has been reopened for the said period, the appellant is entitled to raise all the issue before the Adjudicating Authority although they have been dealt earlier. To support this contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the same. Also, even though an assessee may not contest the correct rate of duty on a commodity cleared by him earlier, whenever the Department seeks to reopen the assessment and demands differential duty for whatever reasons, it is open to the assessees to contest the demand of the higher differential duty with an argument that the rate of duty originally applied was wrong. Even if the allegations against them in the proceedings are found to be correct the quantum of differential duty to be paid by them can be questioned. The Tribunal simply cannot shut out such an argument of the appellant on the ground that he has not raised the dispute regarding the rate of duty until the proceedings are initiated against him. After all the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was finalized on 25.05.2003 was reopened in the show cause notice dated 25.05.2004 issued under section 11A. Once the assessment is reopened then all issues can be raised by the appellants and as such the Adjudicating Authority was bound to consider the refund claim on merits. 7. In these circumstances, when the Ld Commissioner (A) in appellants own case for the earlier period has taken up view that when Show Cause Notice has been issued to the appellant for the same period where assessment has been finalized in that case appellant can raise all the issues on merits and relying on the decisions of this Tribunal in the case of Polydyne Corporation, I hold that in this case also when the show cause notice was issued on 29.12.2004 for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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