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2023 (7) TMI 159 - AT - CustomsRejection of refund claim - plausible reason for the department to file the appeal since the refund application had been rejected by the Assistant Commissioner or not - HELD THAT:- What is more important to notice is that the appeal was filed by the department on 16.01.2017, much after the order was passed by the Delhi High Court on 08.11.2016 in the Writ Petition filed by Intex against the said order dated 22.09.2016 passed by the Assistant Commissioner. The reliefs that had been claimed by Intex in the Writ Petition were to declare the order dated 22.09.2016 as null and void and to quash it as it was in violation of the law declared by the Supreme Court in M/S SRF LTD., M/S ITC LTD VERSUS COMMISSIONER OF CUSTOMS, CHENNAI, COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) , NEW DELHI [2015 (4) TMI 561 - SUPREME COURT]. A further relief that was claimed by Intex was to direct the department to process the application for refund in accordance with the law declared by the Supreme Court in SRF. When the High Court had examined the correctness of the order dated 29.11.2016 passed by the Assistant Commissioner in the Writ Petition filed by Intex, the department could not have filed the appeal before the Commissioner (Appeals) to assail the same order dated 29.11.2016 before the Commissioner (Appeals). The said order, by necessary implication, stood set aside by the Delhi High Court. Further, the directions issued by the High Court had also been duly complied with by the Assistant Commissioner in the fresh order dated 29.11.2016 and payment had also been paid to Intex. The only course open to the department was to have challenged the order passed by the Delhi High Court on 08.11.2016 before the Supreme Court, which the department did by filing a Special Leave Petition in February 2017, but the Petition was dismissed by the Supreme Court on 07.07.2017. Thus, when the appeal was filed by the department before the Commissioner (Appeals) against an order the correctness of which stood decided against the department by the Delhi High Court, the order dated 26.06.2019 passed by the Commissioner (Appeals) on 26.06.2019 would be without jurisdiction. This appeal has been filed by the department to assail the order dated 26.06.2019 passed by the Commissioner (Appeals). The facts stated above would leave no manner of doubt that the department had not only unnecessarily filed the appeal before the Commissioner (Appeals), but this appeal has also been unnecessarily filed by the department before the Tribunal. Appeal dismissed.
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