ORDER
V.K. Ashtana, Member (T)
1. In this matter, the Revenue appeals against the Order-in-Appeal No. 36/98 dated 15.1.98 on the grounds that the refund claims which have been upheld by the Order-in-Appeal impugned should have been dismissed on the grounds of–
(a) time bar;
(b) that the claim was submitted with incomplete documents;
(c) that the refund claims are not admissible on abetment due to cash discount and interest on receivables;
(d) Similarly abetment on account of service charges is to be disallowed; and
(e) they are hit by unjust enrichment under Section 12B of the Act.
2. The learned DR submits on these grounds of appeal and reiterates the same.
3. Learned Consultant Sri Vijayaraghavan submits that in all 46 refund claims are involved covering the period July 1981 to January 1994 covered by two show-cause notices. The show-cause notice dated 16.6.95 seeks to disallow 40 refund claims and the show-cause notice dated 22.6.1995 seeks to disallow the remaining 6 refund claims. Both the show-cause notices have proposed the rejection of refund claims only on two grounds:
(i) The refund claims were submitted with incomplete documentation; and
(ii) the claims were hit by unjust enrichment under Section 12B of the Act.
The learned consultant submits that a perusal of the notice would show that no other grounds of rejection proposed there under. As against this, the Order-in-Original attendant to the Order-in-Appeal impugned had disallowed these refund claims on the following additional grounds which were not agitated in the show-cause notice:
(a) Non-availability of cash discounts;
(b) Non-availability of interest on receivables;
(c) Non-availability of discount of service charges; and
(d) The refund claims are hit by time bar in terms of Section 11B.
With respect to (a) to (c) above, the learned Consultant submits that these decisions have been taken behind their back as they were not the grounds agitated in the show-cause notice and to that extent the Order-in-Original has violated the principles of natural justice. As far as the aspect of time bar is concerned, the learned Consultant submits that out of the period noted above from July 1981 to 13.12.83 all the demands were paid under protest in respect of which the refunds have been claimed and therefore, these payments being under protest, there is no question of applicability of any limitation. He further submits that for the period thereafter i.e. from 14.12.83 to 31.12.84, the records do not show clearly that the payment of duty was made under protest. Therefore, since the refund claims were also not filed within six months from the date of payment of duty, therefore, it is conceded that they may not be in time. However, he further submits that for the period thereafter i.e. from 1.1.85 to 1.1.94, the entire assessments were provisional, as is evidenced from the Letter dated 21.3.94 of the Range Superintendent intimating that the provisional assessments for this period are now being finalised. The actual finalisation has been done by the Order-in-Original dated 11.12.95. Therefore, he submits that except for the period of one year as indicated above, for the rest of the period, the question of applicability of limitation also does not arise. In these circumstances, he prays that the matter be remanded to the original authority for re-consideration in terms of the two show-cause notices and in terms of the facts on record with respect to limitation.
3. We have carefully considered these submissions and records of the case. We have also perused two show-cause notices noted above. We find that the Revenue had sought to reject these 46 refund claims on the basis of their not being accompanied by all the concerned documents required and they were hit by unjust enrichment. These show-cause notices do not contain any whisper of other any reasons for rejecting the claims. The Order-in-Original as well as the grounds of appeal of the Revenue now before us are seen to encompass the four other grounds, which were not proposed by the show cause notices, as has already been noted above. Therefore, we find that the Order-in-Original which is attendant to the Order-in-Appeal impugned has violated the principles of natural justice by considering the issues which were not proposed by the show-cause notice at all and which were also not brought before the assessees to afford their representations thereon. We also find that the submissions of the learned Consultant on the question of time bar have to be verified on the basis of records available with the Field Officer. These records are not before us except the letter dated 21.3.94 of the Range Superintendent, which certainly goes to say that for the period from 1.1.85 to 1.1.94 the assessments had been done provisionally on the RT 12s.
4. In view of the aforesaid findings and in view of the fact that the matter of time bar would have to be re-verified with the records, which are not before us, we have no other alternative but to set aside the order impugned along with the attendant Order-in-Original and remand the matter for de novo consideration to the original authority in terms of the above directions. The original authority shall hear the present respondents on all the aspects of the case and then proceed to pass a speaking order inconformity with the principles of natural justice. Ordered accordingly.