TaxTMI 
TaxTMI 
2024 (6) TMI 42
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.... amount on 27.07.2007 and 29.07.2007. Thereafter there is no SCN issued on Appellant for above said demand and when Appellant realized that the Appellant is not liable to pay said amount, Appellant submitted a refund application on 06.08.2007. On receipt of said refund application, a SCN was issued and after recording the objections made by the Appellant, Adjudicating authority issued an order dated 05.01.2009 and denied the refund. In appeal, Commissioner (Appeals) also rejected the appeal vide impugned order dated 08.03.2010. Aggrieved by said order, present appeal is filed. 2. When the matter came up for hearing, Ld Counsel for the Appellant submits that the Department made demand without any supporting evidence and payment of Rs. 5,79,....
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....ssification cannot be taken note of as show cause notices for the recovery of demand, and we are in agreement with the said findings of the two Members of the Tribunal. This is because of the fact that issuance of a show cause notice in a particular format is a mandatory requirement of law. The law requires the said notice to be issued under a specific provision of law and not as a correspondence or part of an order. The said notice must also indicate the amount demanded and call upon the assessee to show cause if he has any objection for such demand. The said notice also will have to be served on the assessee within the said period which is either 6 months or 5 years as the facts demand. Therefore, it will be futile to contend that each an....
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....approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of the Act or the rules, the Central Excise Officer, can within one year from the relevant date, serve notice on the person chargeable with the duty, which has been short levied or short paid, requiring him to show cause why he should not pay the amount specified in the notice". 5. The issue was considered by this Tribunal in the matter of M/s Merchant Impex Vs CC, Bangalore (2009 (15) STR 504 (Tri. Bang) and held that;- " 5. We have carefully considered the submissions and perused the records. The Apex Court in the case of Metal Forgings (supra) have clearly held that issue of show cause notice is a mandatory req....
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....ng 8437 and sub assembly purchased from Appellant as per the drawing and it is meant exclusively for Agri processing machinery covered under 8437. Ld Counsel also submits that the above said document produced by Appellant is sufficient to prove that the goods supplied by the Appellant is used in manufacturing of Agricultural equipment. Thus, Excise duty of Rs.1,31,373/- demanded from the Appellant is illegal and unsustainable. 7. Further on denial of CENVAT credit of Rs. 11,991/-, Ld Counsel draw our attention to the Bill raised by the Chartered Accountant having Sl. No. 175 dated 15.12.2006 where they have mentioned the service tax registration. Further submits that even if said service registration is not mentioned, it is not a reason to....
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....aw our attention to various documents produced as part of the appeal memorandum and submitted that the above said finding of the adjudicating authority is also factually unsustainable. Regarding the refund of Rs.3,04,986/- under business auxiliary service, the adjudicating authority denied the same on the ground that the job work declaration or supporting documents to prove use of the goods in manufacturing of final products by M/s Nash Industries and 100% EOU is not filed. Ld. Counsel for the Appellant also submitted that claim on the ground that they have no jurisdiction for refund of service tax. It is also unsustainable. If the Adjudicating authority and Commissioner (Appeals) of Central Excise & Service tax have examined the matter on ....
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....llant paid the amount. Thereafter when there was no further proceedings initiated by the respondent to appropriate the amount paid by the appellant, refund application was submitted for refund of said amount. Only based on the refund application, SCN was issued by Deputy Commissioner of Central Excise without specifying the provision under which is issued. However from the wording of the above said SCN, it is evident that on scrutiny of the documents along with refund claim, they have issued the said SCN. Thereafter Adjudicating authority issued impugned Order-in-Original on 31.12.2008 rejecting the refund application submitted by the Appellant on the ground that the goods manufactured and cleared are not eligible for Nil rate of duty, desc....