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TMI Blog2008 (1) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.12.05 and ordered for recovery of Rs 4,91,581/- which was granted as refund vide OIO No. 86/05. The OIO No 86/05 had granted refund on the premise that the credit is available to the assessee. This was challenged by the revenue before the Commissioner (Appeals) and the Commissioner (Appeals) has set aside the OIO No 86/05 and held that the assessee is not eligible for the credit and the amount is required to be recovered from them. The assessee had taken a stand that the recovery proceedings has to commence by issue of show cause notice in terms of Proviso to Section 11 A of the Act. The revenue had not issued show cause notice. The proceedings started with the assessee filing an application for refund of the said amount on the recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.05. The revenue appealed against this order after the refund was made before the Commissioner (Appeals). The appellants contention is that once refund has been made, the revenue ought to issue show cause notice afresh bringing out the reasons for recovery of the erroneous refunds. The refund was made as a consequence of their appeal being allowed by the Commissioner (appeals) vide OIA No 136/05 dated 30.6.05. It is the contention of the appellant that the department aggrieved against the order of refund it had issued a show cause notice as to why the amount should not be credited to Consumer Welfare Fund. The OIO after due consideration noticed that the demand was not hit by principles of unjust enrichment and therefore, the Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its that the revenue has an option to file an appeal against the Order passed by the Assistant Commissioner in OIO and once the OIO has been set aside on legal grounds, the amounts would become recoverable. He reiterates the finding given by the Commissioner (Appeals) in paras 17 18. Learned consultant submits that the Commissioner (appeals) was barred from reopening the matter on merits as the OIA No 136/05 was decided on merits in their favour and the revenue had not challenged that Order before CESTAT. It is his submission that the revenue had issued show cause notice only with regard to the refund being hit by unjust enrichment and they were put to notice as to why the amount should not be deposited in consumer welfare fund. Issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refunded the amount through cheque bearing No G 543641 dated 30.12.05. This Order-in-Original was challenged by the Revenue before the Commissioner (Appeals). The Commissioner (Appeals) in the impugned order has gone into the merits of the case in paras 17 18 and held that transfer of money credit by them is not correct in law. This issue was not before the Commissioner (Appeals). The revenue ought to have challenged only with regard to the amounts to be credited to the consumer welfare fund. The Commissioner (Appeals) ought to have restricted the case with regard to the refund being hit by unjust enrichment. However, he has reopened the issue, which he had no power, as the issue was settled earlier by Commissioner (appeals). The earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Order No. 136/05 dated 30.6.06 decided the case on merits in assessee's favour. The Assistant Commissioner issued show cause notice with regard to the refund being hit by time bar and the OIO is passed on 30.12.05 which is beyond the statutory limit for filing the appeal before CESTAT. The refund is also been made. The correct procedure should have been adopted by revenue and it should have been by issue of show cause notice in terms of provisions of Section 11 A of CE Act for recovery of erroneous refund, which has not been done. The lapse is very clear on the part of the Commissioner. In view of the above, the impugned order is not correct in law and the same is set aside by allowing the appeal. (Pronounced and dictated in open co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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