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Issues: (i) Whether the appellant could raise, for the first time in appeal, the contention that the duty was leviable in accordance with law. (ii) Whether the refund application was within limitation.
Issue (i): Whether the appellant could raise, for the first time in appeal, the contention that the duty was leviable in accordance with law.
Analysis: The show cause notice proceeded only on the ground of limitation and the original adjudication was also confined to that basis. A new ground requiring the claim to be rejected on the footing that the levy itself was lawful was outside the notice and could not be introduced for the first time at the appellate stage.
Conclusion: The appellant was not permitted to raise this ground for the first time in appeal.
Issue (ii): Whether the refund application was within limitation.
Analysis: The refund claim was filed before finalisation of the assessment. The applicable rule was the old Rule 11 read with Rule 173J of the Central Excise Rules, 1944, under which limitation was to be computed from the date of final adjustment after final determination. Since finalisation occurred later, the claim was not barred by time.
Conclusion: The refund application was within limitation.
Final Conclusion: The appellate order allowing the refund was upheld and the department's appeal failed.
Ratio Decidendi: A party cannot expand the dispute beyond the scope of the show cause notice in appeal, and limitation for a refund arising from provisional assessment runs from finalisation of the assessment where the governing rule so provides.
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