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TMI Blog2018 (10) TMI 1561X X X X Extracts X X X X X X X X Extracts X X X X ..... law and such proceedings have to be quashed. The lacunae of non issue of show cause notice is not curable and such proceedings are not sustainable. Even if a party has waived the show cause notice, it will not absolve the department’s statutory liability to issue show cause notice under the relevant provision. Mere presence of the appellant before the Adjudicating Authority during the course of hearing does not authorise the department to encroach upon the right of the appellant to have a fair the opportunity of placing his defence before the adjudicating authority. The presence of the appellant before the Adjudicating Authority, without issuance of show cause notice, cannot lead to the conclusion that the appellant had a fair opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 11B. Aggrieved the appellant filed appeal before the Commissioner (Appeals-III) on the ground that they had not provided any service but only provided documents and that the principle of natural justice is violated because no show cause notice was issued to the appellant proposing rejection of refund claim. The Commissioner (Appeals-III) vide impugned order dated 16.03.2018 without going into the issue of violation of principle of natural justice, dismissed the appeal filed by the appellant. 5. I have heard ld. Counsel for the Appellant and Learned Authorised Representative for the Revenue and perused the record. The appellant has challenged the impugned order on various grounds viz. that the issue of the violation of principle of natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere heard by the Adjudicating Authority before their claim was rejected by them. It means that the adjudicating authority proceeded to dispose of the refund claim of the appellant without issuing the show cause notice. It is settled legal position that in the absence of show cause notice the claimant cannot be held to have a fair opportunity of defending the case. A consistent view taken by this Tribunal is that there has to be issuance of show cause notice, since it is mandatory and if the same has not been issued, then it is contrary to law and such proceedings have to be quashed. The lacunae of non issue of show cause notice is not curable and such proceedings are not sustainable. Even if a party has waived the show cause notice, it will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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