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TMI Blog2015 (5) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... issue fresh show cause notice which the adjudicating authority has failed to do so. In the circumstances, the order dated 02.09.2011 has attained finality as held by the Apex Court in the case of ITC Ltd. [2006 (9) TMI 34 - SUPREME COURT OF INDIA], Revenue has not preferred any appeal against that order. In the circumstances, the adjudicating authority has no right to re-examine the refund claim but only can verify the documents as directed by the Commissioner (Appeals). In the Notification No.41/2007, there is no condition that if the services availed prior to the date of notification, the appellant are not entitled to refund claim as held by the Hon ble Bombay Court in the case of WNS Global Service Pvt.Ltd. (2008 (1) TMI 94 - CESTAT, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioners. When the appellant approached to the adjudicating authority for sanctioning of refund claim as per direction of the Commissioner (Appeals), they produced the documents as directed the adjudicating authority without intervened in the order passed by the Commissioner (Appeals), the adjudicating authority sanctioned the refund claim of ₹ 8,48,422/- and taken no grounds for rejection of the refund claim and rejected the refund claim of ₹ 34,95,654/-. On appeal before the Commissioner (Appeals), the order of rejection of refund claim was upheld. Therefore, the appellant is before me. 4. Learned Consultant for the appellant submits that in earlier round of litigation, the order of sanctioning of refund claim has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal in the case of WNS Global Pvt.Ltd.-2008 (10) STR 273 (Tri.-Mum.) which has been affirmed by Hon ble Bombay High Court reported in 2011 (22) STR 609 (Bom). 5. On the other hand, learned AR opposes the contention of the ld.Consultant and submits that in this case the Commissioner (Appeals) has not simply sanctioned the refund claim but he has directed the appellant to produce certain documents and thereafter the adjudicating authority having every right to examine those documents and denied the refund claim. He drew my attention to certain paras of the impugned order of Commissioner (Appeals) sanctioning refund claim. He further submits that the show cause notice also alleges the same. On merits, he submits that services availed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t acceptable when the Committee of Commissioners has accepted the Order-in-Appeal dated 2.9.2011. However, on examination of the said order, I find that the Commissioner (Appeals) has directed to verify certain documents. In that case, if those documents were not produced by the appellant or found deficient then the refund claim can be rejected to that extent. But the refund claim cannot be examined afresh. 9. In this case, I find that the adjudicating authority has taken the new ground to adjudicate the refund at the time of verification of certain documents which is also not permissible in law. As the show cause notice was issued to the appellant in the matter has already attained finality by the order of the Commissioner (Appeals) on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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