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TMI Blog2020 (3) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... y of claims sanctioned and disposed way back in 2011-12 is, therefore, not sustainable. The show cause notice is rather beyond the period of limitation. There is no iota of even whisper that the assessee had any intention to evade the duty. The admitted fact remains that the respondent/assessee has exported the goods on payment of duty under claim of rebate. Admittedly goods have been exported out of India and proof of export has been duly submitted. Respondent admittedly has been regularly filing the ER-Returns which were never objected by the Range Officer at the appropriate time - Commissioner (Appeals) has committed no error while holding the show cause notice as being barred by time and holding the assessee otherwise entitled to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneously refunded. Based on the said observation that the show cause notice dated 23-3-2015 was served upon the appellant proposing recovery of the aforesaid refund amount along with the interest at the appropriate rate and the proportionate penalty. The said proposal was confirmed vide Order-in-Original No. 52/ADC/D-I/2016, dated 31-8-2016. The appeal thereof was allowed vide the aforementioned Order-in-Appeal No. 98, dated 29-12-2017. Being aggrieved thereof the Review Order was passed by Commissioner of G.S.T., West on 6-4-2018 directing that appeal be filed against the said Order. Resultantly, the Department is in appeal before this Tribunal. 3. We have heard Shri P. Juneja, Learned Authorised Representative on behalf of the Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Counsel for the assessee/respondent has submitted that the show cause notice has been issued based on the audit objections noticed in December, 2013 for the period 2008-09 to 2011-12 but the show cause notice is of March, 2015 objecting the sanction and disbursement of fifteen rebate claims of the period 2010-11. Thus, the show cause notice is much beyond the normal period of one year of the limitation. The assessee s amount being less than ₹ 5 Lakhs, it was subject to pre-audit as well as post audit. The Department has wrongly invoked the extended period of limitation. Show cause notice is accordingly prayed to be held as barred by time. It is submitted that the sanction and disbursement of the rebate amount was not objected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be issued. We draw our support from the decision of Hon ble Supreme Court in the case of Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. reported in 2000 (120) E.L.T. 285 (S.C.). The said decision has recently been followed by this Tribunal in Final Order No. 50312/2019, dated 30-1-2019 in the case of Bridgestone India Pvt. Ltd. v. CGST CE., Ujjain. Hon ble High Court of Madras also while hearing the appeal of Eveready Industries India Ltd. v. CESTAT, Chennai reported in 2016 (337) E.L.T. 189 (Mad.) has held that once an application for refund is allowed under Section 11B, the amount refunded will not fall under the category of erroneous refund so as to enable the Order of refund to be revoked under Section 11A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e/respondent had already undergone sufficient scrutiny at pre-audit as well as post audit stage of refund, before those were actually sanctioned by the Adjudicating Authority. Raising an audit objection after two years of such sanction and even disbursement, is beyond the legislative intent. Issuing of show cause notice in March, 2015 proposing the recovery of claims sanctioned and disposed way back in 2011-12 is, therefore, not sustainable. The show cause notice is rather beyond the period of limitation. 7. There is no iota of even whisper that the assessee had any intention to evade the duty. The admitted fact remains that the respondent/assessee has exported the goods on payment of duty under claim of rebate. Admittedly goods have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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