9911796707
TMI Blog2023 (10) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... dication order was dispatched on 02.04.2014 through Speed Post whereas in reply to the RTI, it is stated by the department that the adjudication order has been received by one Shri Puroshattam Giri on 01.04.2014. In that circumstances, there is contrary observations made by the Ld.Commissioner(Appeals). Moreover, the Ld.Commissioner(Appeals) mentioned the letter dated 09.06.2014 as 09.04.2014 and to that effect the appellant has filed an affidavit before this Tribunal stating that Shri Puroshattam Giri neither an employee of the appellant nor the appellant has authorized any person to collect the adjudication order and that affidavit is filed on oath, therefore, the benefit of doubt goes in favour of the appellant that they have received th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious refund claims on 08.06.2010 under Notification No.102/2007 dated 14.09.2007 for refund of SAD paid at the time of importation. Pursuant to the refund claims, a show cause notice dated 18.11.2010 was issued to the appellant alleging that as per Para 2(d) of the Notification No.102/2007-CUS dated 14.09.2007, the importer shall pay on sale of the said goods appropriate Sales Tax/VAT as the case may be. Therefore, the appellant was required to pay appropriate Sales Tax/VAT along with payment of Additional Customs Duty to be eligible for the sanction of the refund under the said Notification. As the appellant did not pay VAT/Sales Tax while selling the goods in the domestic market, therefore, why their refund claim would not be rejected? T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 and it was not alleged in the show cause notice that the refund claims filed by the appellant are time barred. Therefore, the adjudicating authority cannot go beyond the allegation in the show cause notice in subsequent proceedings. In that circumstances, the impugned order is to be set aside. 4. He further submitted that the Ld.Commissioner(Appeals) has rejected their appeal holding that the same is barred by limitation as the adjudication order dated 31.03.2014, dispatched through Speed Post on 02.04.2014. In response to these orders, a letter dated 09.04.2014 has been received by the Assistant Commissioner from the appellant informing that due to the health problem their authorized person is not coming to office to collect the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties, considered the submissions. 8. We find that in earlier round of litigation on merits this Tribunal dismissed the stay applications filed by the revenue. The operative part of the order is extracted below:- 4. We find that the Special CVD is as per sub-section 5 of Section 3 of CETA, 1985. The Special CVD is levied for counter-balancing for Sales Tax/VAT. Undisputedly, the Sales Tax/VAT is exempted in this case. In this regard, learned Commissioner(Appeals) has found that the element of CVD is a tax in lieu of Sales Tax/VAT and that once the Importer fulfills the obligation of paying both the CVD and the Sales Tax/VAT, then he is entitled to refund of the CVD he had paid. The relevant portion of the Commissioner(Appeals ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 alleging that the appellant is not entitled for refund claim as they have not paid Sales Tax/VAT and on merits this Tribunal has decided the issue in favour of the appellant, but while sanctioning the refund claim in second round of litigation, the adjudicating authority held that the refund claims are barred by limitation. The said rejection of refund claim is not sustainable in the eyes of law as the same has not been alleged in the show cause notice, when it was issued after filing the refund applications by the appellant. 10. Further, the Ld.Commissioner(Appeals) dismissed the appeal filed by the appellant on merits as well as on limitation. 11. On limitation the Ld.Commissioner(Appeals) observed that the adjudication order wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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