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TMI Blog2015 (7) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... n for refund was in the prescribed form or not. In any case once all the refund claims and their fate had attained finality in the order of the Commissioner (Appeals), no further action could have been taken except the option of appealing against that decision and recover the lost ground which has been missed. I also agree with the submissions that this is a case where the decision of the Hon'ble Supreme Court in the case of Kamlakshi Finance Corporation Ltd. [1991 (9) TMI 72 - SUPREME COURT OF INDIA] is applicable and therefore the order should have been simply implemented. - Appellant would be eligible for the interest after 3 months from the date of filing the claim in this case so that another round of litigation is not initiated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter verification of documents had submitted that the appellant had fulfilled all the 3 conditions prescribed in the Board's Circular No. 97/08/2007 dated 23.08.2007, allowed the appeals. No appeal was filed by the Revenue against this order. 2. Instead fresh proceedings were started by the Revenue by issuing another show-cause notice on 22.03.2010. The show-cause notice while admitting the fact that the Commissioner (Appeals) had allowed the appeals after getting the verification report and assessee had filed a letter dated 29.12.2009 for refund as per the order passed by the learned Commissioner, the show-cause notice mentions that assessee was asked to produce documents for verification but assessee contended that they need not pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility or to determine whether they are fulfilled the conditions. He relies upon the decisions in the case of Triveni Chemicals Ltd. Vs. Union of India [2007 (5) S.T.R. 177 (S.C)] to submit that once an order had attained finality, in the absence of any appeal, the Revenue cannot initiate fresh proceedings but has to implement in the order. He relies on the decision of Hon'ble Supreme Court in the case of Union of India Vs. Kamlakshi Finance Corporation Ltd. [1991 (55) E.L.T. 433 (SC)] to submit that original authority by issuing a show-cause notice had not followed the ratio of law laid down by the Hon'ble Supreme Court which requires all authorities to maintain judicial discipline. He also relies upon the decision of the Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) order dated 13.05.2009. Commissioner has considered the issue properly by getting the documents submitted before him verified and getting the verification report by the original authority and after satisfying himself based on the verification report, he allowed the appeals. The Revenue had an opportunity to rectify the mistakes at least at this stage since litigation is a mixed question of law and facts and probably this could have been considered by the Tribunal if appeal was to be filed. Whether this could have been done or not is not relevant since another opportunity was lost by not filing the appeal against the order of Commissioner (Appeals). 6. Thereafter the officers committed another mistake by issuing another show-cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uliar facts and circumstances of this case, Section 11B, as amended by Section 3 of the Central Excise and Customs Laws (Amendment) Act, 1991, would be applicable. 8. We have noticed hereinbefore that the application for refund was rejected by the Assessing Authority. It was, however, allowed by the Appellate Authority. It is not in dispute that no further appeal was taken therefrom. The said order, therefore, attained finality. It matters little as to whether the application for refund was in the prescribed form or not. The respondents herein could raise all contentions before the Appellate Authority. In fact, before the original authority, a plea of unjust enrichment was raised. Such a plea, however, appears to have not been raised bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll amount has also been held to be beyond the limitationperiod prescribed under Section 11B which is of course a new ground but in the light of the decision of the Hon'ble Supreme Court, this ground also cannot be considered. In any case once all the refund claims and their fate had attained finality in the order of the Commissioner (Appeals), no further action could have been taken except the option of appealing against that decision and recover the lost ground which has been missed. I also agree with the submissions that this is a case where the decision of the Hon'ble Supreme Court in the case of Kamlakshi Finance Corporation Ltd. is applicable and therefore the order should have been simply implemented. 9. In view of the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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