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TMI Blog2023 (1) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of total refund claim and also on the ground that in one of the speed post the pin code has been wrongly mentioned as 421310 in place of 421301. I have gone through the From-R [Application for consequential refund of amounts paid] which was filed by the appellant on 25.2.2019 and can be termed as 2nd refund claim. In the said refund application it has specifically been mentioned in Ground (vi)(b) that they had already filed the refund application regarding dropping demand of Rs.1,21,898/- plus interest and penalty as well as appeal before the Commissioner (Appeals) against the confirmation of the demand for the balance amount. Not only that, in the prayer of the said Form-R refund application a specific submission has been made that earlier consequential refund application is still pending with the department . The rejection of the speed post on the ground of incorrect mentioning of pin code seems to be filmsy as the Track Order Status placed on record by the appellant in support of its submissions establishes the delivery/receipt of the aforesaid speed post on 30.6.2017 at 09.03 am at Dandekarwadi S.O. which is the address of the Range Officer, Central Excise, Kalyan on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorities below, it cannot be brushed aside as no specific format of certificate has been prescribed by the statute. If the department proves anything contrary to the statement mentioned in the certificate then certainly they have a valid ground to discard it, but this is not the case anywhere. - Excise Appeal No. 85456 of 2020 - FINAL ORDER No: A/85005 / 2023 - Dated:- 5-1-2023 - MR. AJAY SHARMA, MEMBER (JUDICIAL) Shri A.S. Gill, Advocate for the appellant Shri P.K. Acharya, Supdt. (AR) for the respondent ORDER This appeal has been filed challenging the order dated 25.10.2019 passed by the Commissioner (Appeals-Thane), GST CX, Mumbai by which the learned Commissioner rejected by appeal filed by the appellant. 2. The issue herein is rejection of refund claim amounting Rs.10,50,329/- [Rs.5,87,444/- Cenvat credit+ Rs.3,16,024/- towards interest + Rs.1,46,861/- towards penalty], which admittedly was paid by the appellant during investigation towards reversal of Cenvat credit, interest and penalty somewhere in the year 2010. Out of this amount, Rs.2,17,946/- (inclusive of interest penalty) was rejected on account of beyond limitation, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted as the claim has been filed beyond the prescribed period, which got adjudicated vide Order-in-Original dated 14.5.2019 by which the Adjudicating Authority rejected the refund claim to the extent of Rs.2,17,946/- on the ground of limitation u/s. 11B(1) ibid and although sanctioned the refund claim of the balance amount of Rs.8,32,383/- but transferred the same to Consumer Welfare Fund on the grounds of principles of unjust enrichment. 6. I have heard learned counsel for the Appellant and learned Authorised Representative for the Revenue and perused the case records including the synopsis placed on record. Firstly I am taking up the issue of rejection of refund claim of Rs.2,17,946/- which was rejected by the Adjudicating Authority on the ground of limitation and the said order was upheld by the 1st Appellate Authority. According to the appellant they have filed the aforesaid refund claim on 29.6.2017 and in support of their submission they produced on record the speed post receipt also alongwith its tracking but the aforesaid claim of the appellant about filing of refund claim in the year 2017 has been rejected by the authorities below merely on the ground that while filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals) the appellants have failed to furnish the proof to establish that they have not passed the incidence of refund claim amount to any other person. Whereas as per the appellant the goods in question on which credit in issue was availed were raw materials/input for manufacture of capital goods, those were manufactured during the years 2004 to 2006 which were not sold and so the question of passing on burden of amounts deposited during investigation does not arise. According to learned counsel the amounts in question were deposited in the year 2010 during the course of investigation and there was neither sale of capital goods manufactured in situ nor any duty was leviable on the capital goods so manufactured in situ and hence the question of passing of burden to anyone can t arise. I have gone through the show cause notice dated 5.4.2019 and find that the said notice is confined to the rejection of the amount of Rs.2,17,946/- only and there was no whisper about the balance amount of Rs.8,32,383/-, not even a passing reference. For the first time it was raised during adjudication proceedings by way of letter dated 3.5.2019 therefore this issue is beyond the show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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