TaxTMI 
TaxTMI 
2018 (9) TMI 1590
X X X X Extracts X X X X
X X X X Extracts X X X X
....n amount of Rs. 18,82,402/- and Rs. 6,54,085/- being the service tax paid for the service provided by a Customs House Agent in relation to goods exported by them. The first refund claim for the quarter ending January to March 2008 was originally filed before the Hyderabad Commissionerate. The same was returned to the appellant on 29.8.2008 for filing before the proper officer. As directed, the appellant thereafter filed the refund claim before the Deputy Commissioner of Central Excise, Coonoor, Mettupalayam on 4.12.2008. On the basis of result of verification report submitted by the Superintendent of Central Excise, Mettupalayam Range and after perusal of the refund claim, the original authority came to the conclusion that the refund claim ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the turnover of each factory and filed respective refund claim with each of their factory and the refund was denied for the reason that such claim have been on the percentage of production of each unit cannot be allowed. The Commissioner (Appeals) has gone a step ahead and rejected on an additional ground stating that CHA services is not a notified service prior to 1.4.2008. The appellant was not put to notice regarding these grounds. 4. He vehemently argued that the refund claims were rejected without issuing any show cause notice to the appellant. Even a deficiency memo pointing out the deficiencies in the refund claims were not issued to the appellant. Thus, non-issuance of show cause notice is fatal to the adjudication and has res....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e also adverted to the letter dated 3.11.2008, wherein the appellant while resubmitting the refund claim which was returned by the Hyderabad Commissionerate, had explained in the said letter the reason for delay as the refund claim was presented before the wrong forum. In the said letter, the appellants have specifically stated that they may be issued a show cause notice in case the department intends to reject the refund claim. Even after requesting for issuance of show cause notice the department has not bothered to issue a show cause notice to the appellant. It may be correct that they were called for personal hearing on 16.12.2008. But the said personal hearing cannot substitute the requirement to issue notice giving grounds proposing f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd, concomitantly, settled law insists that detriment cannot be visited upon a taxpayer without prior notice. No such notice was issued by the Assistant Commissioner of Customs ever. Though we observe that he has recorded waiver of right to notice by the claimant, the circumstances of this waiver are not recorded and it is reasonable to deduce that the claimant may not, in the most pessimistic of moods, have imagined that the claim would be rejected. Had the claimant been aware that the refund was liable to be rejected because of failure to dispute assessment, the reaction may well have been to rectify the alleged defect. In such a circumstance, the refund claim need not have been disposed of but kept pending till the correctness of enhance....