TaxTMI 
TaxTMI 
2008 (1) TMI 148
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....mmissioner (Appeals) has set aside the OIO No 86/05 and held that the assessee is not eligible for the credit and the amount is required to be recovered from them. The assessee had taken a stand that the recovery proceedings has to commence by issue of show cause notice in terms of Proviso to Section 11 A of the Act. The revenue had not issued show cause notice. The proceedings started with the assessee filing an application for refund of the said amount on the receipt of the favourable decision from the Commissioner (Appeals). 2. It is the assessee's contention that they had requested for transfer of money credit amounting to the above sum lying in balance at their Hyderabad unit to their Kothur unit and made an application ....
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....e reasons for recovery of the erroneous refunds. The refund was made as a consequence of their appeal being allowed by the Commissioner (appeals) vide OIA No 136/05 dated 30.6.05. It is the contention of the appellant that the department aggrieved against the order of refund it had issued a show cause notice as to why the amount should not be credited to Consumer Welfare Fund. The OIO after due consideration noticed that the demand was not hit by principles of unjust enrichment and therefore, the Assistant Commissioner allowed the refund and made the payment through cheque along with OIO. Therefore, the revenue ought to have issued a fresh show cause notice for recovery of the amount. The non-issue of show cause notice is ....
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....He reiterates the finding given by the Commissioner (Appeals) in paras 17 & 18. Learned consultant submits that the Commissioner (appeals) was barred from reopening the matter on merits as the OIA No 136/05 was decided on merits in their favour and the revenue had not challenged that Order before CESTAT. It is his submission that the revenue had issued show cause notice only with regard to the refund being hit by unjust enrichment and they were put to notice as to why the amount should not be deposited in consumer welfare fund. Issue therefore is restricted to this and the Assistant Commissioner in OIO No 86/05 dated 30.12.05 upheld their contention that the amounts were not hit by unjust enrichment and along with th....
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....eals) in the impugned order has gone into the merits of the case in paras 17 & 18 and held that transfer of money credit by them is not correct in law. This issue was not before the Commissioner (Appeals). The revenue ought to have challenged only with regard to the amounts to be credited to the consumer welfare fund. The Commissioner (Appeals) ought to have restricted the case with regard to the refund being hit by unjust enrichment. However, he has reopened the issue, which he had no power, as the issue was settled earlier by Commissioner (appeals). The earlier OIO No 136/05 had allowed the transfer of utilization of money credit to Kothur Unit. The revenue ought to have issued show cause notice under the provisions of Section....