2018 (5) TMI 1401

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..... d show cause notice is not maintainable - appeal allowed - decided in favor of appellant.
Mr. Ashok Jindal, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri. S.K. Malhotra, CA- for the appellant Shri. A.K. Saini, AR- for the respondent Per Ashok Jindal: The appellant is in appeal against the impugned order wherein a show cause notice was issued to them for erroneously refund claim sanctioned to them under Notification No. 56/2002-CE dated 14.11.2002 for zinc ash and zinc cyclone on the ground that the said goods are exempted from payment of duty, therefore, they are not liable to pay duty. 2. The facts of the case are that the appellant is engaged in the manufacture of M.S/G.I Pipes and Tubes. During the cour .....

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..... nding in the impugned order. 5. Heard the parties and considered the submissions. 6. As facts of the case are not in dispute that initially the appellant paid the duty and the same has been entertained at the time of sanctioning the refund claim under Notification No. 56/2002-CE and refund claim was sanctioned. The said order has not been challenged by the Revenue. In that circumstances, in the light of the decision of Priya Blue Industries (Supra), the impugned show cause notice is not maintainable which has been discussed by this Tribunal in the case of Annant Wines and Spirits (Supra) wherein this Tribunal observed as under: "Notification No. 91/09-Cus., dated 11-9-2009 and thus bills of entry have been assessed wherein the name of SF .....

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..... ame issue. However, we are in agreement with the other findings of the Commissioner (Appeals) that the order of assessment is an appealable order; that no certified copy was required for filing appeal before the Commissioner (Appeals); that there is a delay of minimum of 11 months to maximum of 3 years 4 months and that Commissioner (Appeals) has no powers to condone such delay, as he has only powers to condone the delay of 30 days in terms of Section 128(1) of the Customs Act." 7. In these circumstances, we hold that the show cause notice issued to the appellant is not sustainable. Accordingly, the impugned proceedings against the appellant are set aside. In result, the appeal is allowed. (Dictated and pronounced in the open court)
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