2018 (11) TMI 731 – CESTAT MUMBAI – TMI – Refund of duty paid under protest – remission of duty – scope of SCN – CBEC Circular No. 800/33/2004-CX dated 01.10.2004 – Held that:- It is settled legal principle that no authority is allowed to travel beyond the show cause notice – In the present matter, the show cause notice proposes the disallowance of refund mainly on the ground of clarification issued by CBEC Circular dated 01.10.2004, and the Adjudicating Authority also rejected the claim on the said ground. But in the impugned order there is not even a whisper by the Commissioner (Appeals) about the said Circular.
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A new case cannot be made out at the Appellate level and the department cannot travel beyond the show cause notice.
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The matter is remitted to the Commissioner (Appeals), Raigad for passing a fresh order after taking into consideration all the contentions raised by the Appellant – appeal allowed by way of remand. – APPEAL NO: E/86260-86261/2018 – A/87820-87821/20
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/- vide GAR challan dated 05.01.2015 and ₹ 2,84,733/- vide GAR challan dated 13.10.2015 for respectively under protest. The Appellant thereafter filed two refund claims on 17.10.2016 for the interest paid under protest. The department issued show cause notices to the appellant for rejection of the refund in terms of the said CBEC Circular No. 800/33/2004-CX dated 01.10.2004 issued under F.No. 267/22/2002-CX-8. The Adjudicating Authority vide order-in-original no. Bel-V/Tech-II/164/Refund/AC/2016 dated 26.12.2016 rejected both the refund claims of the appellant in view of the clarification issued in the CBEC Circular dated 01.10.2004. Aggrieved the appellant filed appeal before the Commissioner (Appeals) on the ground that CBEC's Circular dated 01.10.2004 was based on decision of this Tribunal in the case of Mafatlal Industries Ltd. vs. CCE & Custom, Ahmadabad; reported in 2003(154) ELT 543(Tri-Mumbai) but the same was overruled by the Larger Bench of the Tribunal in the c
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Appellant submitted that the impugned order is liable to be set aside solely on the ground that the Commissioner of Central Tax (Appeals) has travelled beyond the show cause notice which is not permissible. He further submitted that the only reason mentioned in the show cause notice as well as in the adjudicating Order for rejecting the refund claim was that considering the clarification issued by the CBEC Circular dated 01.10.2004, the interest was correctly demanded. He further submitted that he filed the appeal before the Commissioner of Central Tax (Appeals) and pointed out that the Board Circular, as cited in the show cause notice and in the Adjudication Order, was no longer good law in view of the decision of the Tribunal in the case of Mafatlal Industries Ltd. (supra) which had been cited in the said circular since the basis for the said circular, had been expressly overruled by the Larger Bench of the Tribunal in the matter of Grasim Industries Ltd. (supra) and the said decisi
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