1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.126 OF 2007 The Commissioner of Central Excise Mumbai-IV ...Appellant. vs. Beekalene Fabrics Pvt.Ltd. ...Respondent. --- Mr.P.S.Jetaly with P.A.Vyas, for Appellant. Mr.M.H.Patil, for Respondent. CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 16TH July, 2008. P.C.:- 1. Heard the learned Counsel appearing for both the sides. The application for refund was rejected by order dated 26.11.1999 passed by the Assistant Commissioner of Central Excise. An appeal was filed 2 against that order. One of the grounds was that the ground of limitation is not mentioned in the show cause notice. That appeal was decided by order dated 29.5.2000. The relevant portion of paragraph (4) of that order reads as under:- “I have carefully gone through the facts of the case and the law on the subject. I find that the adjudicating officer has failed to follow the principles of natural justice by affording an opportunity to the appellant to substantiate their claim and also no speaking order was issued. Regarding the contention that refund claim was rejected on the grounds of limitation not indicated in the show cause notice issued to them, I find that the adjudicating authority does not have the powers to travel beyond the scope of Show Cause Notice.” The next is paragraph 5 of that order which is relevant. It reads as under:- “Accordingly, I direct that the appellants case should be re-considered under due process of law. The matter should be disposed of only on the grounds indicated in 3 the show cause notice issued to the appellant and after granting an opportunity to the appellant to present their case and by issue of speaking order.” Perusal of the order shows that the appellate authority has held that the order can be made pursuant to the show cause notice only on the points which are mentioned in the show cause notice and it has also held that the ground of limitation is not indicated in the show cause notice and the lower authority was directed to dispose of the proceedings denovo only on the ground indicated in the show cause notice. 2. On remand, surprisingly, the authority rejected the application only on limitation. An appeal was preferred against that order. In the appeal, also , the order was confirmed. The Tribunal has considered the entire facts and has held that on the ground of limitation, the application could not have been rejected. In our opinion, in view of the facts recorded by the appellate authority in the first round of litigation, which we have quoted 4 above, it was not permissible for the authority to record contrary finding in relation to the limitation without challenging the order passed by the appellate authority at first round. Therefore, we do not find any fault with the order impugned in the appeal. Appeal is therefore, rejected. (D.K.DESHMUKH, J.) (J.P.DEVADHAR, J.) ---