AI Drafter 
TaxTMI 
TaxTMI 
2019 (4) TMI 119
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.... in the later name. The ownership of the goods were transferred under the BTA to the new owner on 12.03.2010. However, inputs, capital goods, partially processed goods, finished goods etc., were not physically removed. The change of ownership does not warrant the physical movement of goods and the entire business has been sold without any movement of the goods. On the directions of the jurisdictional Central Excise Commissioner duty liability of PDP unit was discharged by way of reversing the credit in respect of inputs and capital goods transferred under the BTA. This reversal was however, done under protest on 31.03.2010. Subsequently, appellants preferred a refund claim of the said amount interalia on the grounds that liability to pay Ce....
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.... filed by the appellant for Rs. 1,66,94,585/- is liable for rejection under the provisions of Section 11 B of the Central Excise Act, 1944. Competent authority vide an order dated 29.07.2011 confirmed the proposals made in the SCN, held that duty discharged by the claimant on the goods transferred/sold to the buyer is in order and rejected the claim on merits under Section 11 B of the Act. In appeal, the Commissioner (Appeals) vide impugned order dated 06.11.2012 held that refund claim of the appellant was premature when it was filed before the Asst. Commissioner; that it is not possible for the Asst. Commissioner sit in judgment over the direction of the Commissioner; and just on this ground/reasons, the lower appellate authority upheld....
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....ed beyond the SCN and the adjudication order which is not permissible in law, We, therefore, set aside the impugned order and allow the appeal." vi) Similar view was taken by the Tribunal in Basawa Technologies Ltd. - 2017 (353) ELT 227 (Tri.-Del.). vii) In any event, the purported findings of the Commissioner (Appeals) that the appellant was not entitled to refund as the amount deposited in compliance of the direction of the Commissioner is ex-facie, erroneous and untenable in law. viii) In any event, directions issued were contrary to law and passed without affording any opportunity of hearing to the appellant and as such passed in breach of principles of natural justice is clearly nullity. ix) Reliance placed by the Ld. Commi....
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....f the Commissioner giving such directions that they cannot file the refund claim. He draws out attention to paragraphs 4.2 to 4.5 of the impugned order to highlight the fact that the Commissioner (Appeals) has brought these aspects in detail and only thereupon, he arrived at a decision that the refund claim was premature. 4. Heard both sides and have gone through the facts. 5.1 On going through the facts on record, we find that the Ld. Advocate is correct in his assertion that the lower appellate authority has indeed gone beyond the parameters of the SCN. The SCN dated 16.11.2010 had not gone into the eligibility of the appellant to file the claim nor had it delved into the discrepancies found by the Commissioner (Appeals) in paragrap....
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....of the Tribunal to make out in favour of the Revenue a case which the Revenue had never canvassed and which the appellants had never been required to meet. It is upon this ground alone that the appeal must succeed." 5.3 The very same ratio has been followed in the Tribunal decision in the case of Curekraft Chemicals Pvt. Ltd. (supra), also relied upon by the Ld. Advocate. In the circumstances, we are of the considered opinion that the Commissioner (Appeals) has overstepped the scope of the appeal made to him. He has gone beyond the issues framed in the SCN with which only the entire proceedings had emanated. This being so, the order of the Commissioner (Appeals) based on these grounds that the appeal was premature cannot be sustained and....