2018 (7) TMI 596

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....epartmental clarification vide MF (DR)DO letter F No. 334/1/2012 TRU dated 01.06.2012, new rate was effective from 17.03.2012. Subsequently, CBEC vide Circular No. 981/05/2014-CX dated 10.02.2014 clarified that the enhanced rate of duty would be effective from 28.05.2012 and not 17.03.2012. Accordingly, the assessee claimed refund of duty on 15.07.14, relying upon the Board's Circular. The Adjudicating authority rejected the refund claim in terms of Section 11B (1) of the Central Excise Act, 1944. By the impugned Order, the Commissioner (Appeals) allowed the appeal by setting aside the Adjudication Order with consequential relief to the assessee. Hence, the Revenue filed this appeal. 2. Heard both sides and perused the appeal records. 3.....

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.... six months prescribed by Section 11 B of CEA, 1944 found inapplicable". 7. I also find that in the case of Jubilant Enterprises Pvt. Ltd. [2014(35) STR 430 (Tri.-Mumbai)] involving similar facts where the case of refund arose because CBEC's clarification that service tax not payable the Hon'ble CESTAT held that , "in this case, the appellant has paid service tax during the impugned period for which they are not required to pay service tax at all as clarified by C.B.E & C. As the payment made by the appellant is not of service tax, therefore, as held by this Tribunal in the case of Shankar Ramchandra Auctioneers (supra) the provisions of Section 11B of the Central Excise Act are not applicable. Therefore, the refund claim filed by the appe....

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....missioner (Appeals) also remanded the matter to the original authority with the direction to dispose of only on the grounds indicated in the show cause notice issued to the assessee while holding that the adjudicating authority does not have the powers to travel beyond the scope of Show cause Notice. On remand the lower authority again rejected the refund on limitation and on appeal the same was confirmed. The Tribunal considereing the entire facts has held that on the ground of limitation, the application could not have been rejected. The Mumbai High Court held that, "In our opinion, in view of the facts recorded by the appellate authority in the first round of litigation, which we have quoted above, it was not permissible for the authorit....