2023 (6) TMI 860 - CESTAT MUMBAI

Refund of SAD - rejection of refund claim on the ground of limitation pertaining to 9 Bills of Entry - HELD THAT:- The rejection of the refund claim on the ground of limitation is totally perverse as the Adjudicating Authority has already decided the issue by holding the same within time prescribed and the Revenue is not aggrieved with the said finding as no appeal has been filed by them. The appellant by merely filing an appeal against the order of the Adjudicating Authority cannot be worse off than what he was. 1st Appeal against any order passed by any officer below the rank of Commissioner of Customs lies with the Commissioner of Customs (Appeals) in terms of Section 128 (if the appeal has been preferred by assessee) or Section 129(D)(4) (Department’s appeal on review of order] as the case may be. Legislature has very carefully worded the provision regarding filing of appeal by the Revenue as the said appeal lies only upon after the review of the order by the Commissioner of Customs.

When without review by proper authority the department can’t file any appeal before the Commissioner (Appeals) then where is the question of the Commissioner (Appeal) suo motu taking up any issue from the adjudication order which has been decided in favour of the assessee, to decide the same against the assessee that too in the appeal filed by the assessee. The Adjudication Order i.e. Order-in-Original has been passed on 23.2.2016 and the limitation of filing appeal against that order has expired 7-8 years back, therefore now the department can’t file any appeal before the 1st Appellate Authority and in that scenario the findings recorded by the adjudicating authority in favour of the appellant have attained finality.

Matter remanded back to the Commissioner (Appeals) with a direction to decide the appeal filed by the appellant afresh confining to the issue raised by the appellant before the said appellate authority - appeal allowed by way of remand.