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TMI Blog2008 (2) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... re assessed by the Customs officers as per the declarations filed by the respondents and respondents were directed to pay the amount of duty assessed and education cess thereon. The respondents discharged the duty liability and cleared the consignments. Subsequently the respondents noticed that they had not availed the benefit of Notification No. 43/02, dated 19-4-02 which exempts the payment of the whole of the customs duty leviable thereon and other additional duty, filed refund claims with the authorities. Show cause notice was issued to the respondents directing them to show cause as to why such refund claim should not be rejected. After considering the submissions made by the respondents before him in reply to the show cause notice as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the respondents draws my attention to the show cause notice issued by the lower authorities. It is his submission that the show cause notice sought to reject the refund claim of the appellant only on the ground which were mentioned in the show cause notice. It is his submission that the adjudicating authority instead of sticking to the grounds mentioned in the show cause notice, traversed beyond the show cause notice and rejected the refund claim. He draws my attention to the adjudicating authority's findings on the issue. He submits that the adjudicating authority having traversed beyond show cause notice, the order of the Commissioner (Appeals) in his case is correct. On a query from the Bench whether the law, as settled by the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich were returned as incomplete to the importer on 28-3-2005 with the following observations: (i) The grounds of claim are too cryptic and not supported by any documentary evidence. (ii) There is no evidence that the amount claimed as refund is not passed on to any other person. (iii) There is no certificate from the jurisdictional Central Excise Authorities about non-availment of credit of amount claimed as refund. (iv) There is no evidence that the amount claimed as refund is shown as receivable in the balance sheet/provisional balance sheet or any other documents. (v) Any other documentary evidence, which supports the claim, is not attached with the claim. (vi) Original duty paying TR6 challan case of B/E No.002318/25-8-2004 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y rejected the refund claims of the respondents on the following findings: "27. Thus, I find that the importer filed refund claims without challenging the assessment before the appropriate authority within the stipulated time and without the assessment order being modified by the appellate authority and unless the order of assessment has been reviewed under Section 28 and/or modified in an appeal that order stands. So long as the order of assessment stands the duty would be payable as per the order of assessment. Thus I find that the refund claims are not an appeal proceedings and the officer considering the refund claim cannot review an assessment order and without the order of assessments made in respect of above bill of entries of M/s M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been required to meet at every stage from the show cause notice onwards, was that the said product was a preparation based on starch. Having come to the conclusion that the said product was not a preparation based on starch, the Tribunal should have allowed the appeal. It was be yond the competence of the Tribunal to make out in favour of the revenue a case which the revenue had never canvassed and which the appellant had never been required to meet. It is upon this ground alone that the appeal must succeed." I also find that the Apex Court in the case of Ballarpur Industries Ltd. (supra) held as under: "21…… It is well settled that the show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice, would be a violation of principles of natural justice. The judgments cited by the SDR were rendered on different context and the facts and circumstances of the current case are totally different. 9. Accordingly, I am of the view that the impugned order-in-appeal in challenge is incorrect and is liable to the set aside only on the ground that the said impugned order if also traversing beyond show cause notice. As such both the order of the lower authorities are set aside and the matter is remanded back to the adjudicating authority to reconsider the issue afresh after granting an opportunity of personal hearing to the respondents. Respondents are free to canvass any point before the lower adjudicating authority. Accordingly the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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