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2023 (10) TMI 76 - AT - CustomsValidity of assessment order - refund of BES - rejection on the ground that claim is pre-mature - appeal pending before the Tribunal - HELD THAT:- The refund was claimed within the prescribed time but, the appeal against rejection of claim was rejected by the Court below, on the grounds that since the appeal on merits was pending before this Tribunal, it was premature - the appeal of the assessee have been finally allowed in their favour in RASHTRIYA CHEMICALS & FERTILIZERS LTD VERSUS CC & ST, VISAKHAPATNAM CUS [2019 (1) TMI 2032 - CESTAT HYDERABAD], wherein, it had been held that CVD was chargeable at 1% and not 5%, by following rulings of Supreme Court in the case of 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]. If the argument of the Revenue is accepted, it will amount to miscarriage of justice in as much as the original refund application filed was admittedly within the time limit prescribed under the Act. Further, when the refund was rejected on merits, which in appeal, was dismissed as pre-mature on the grounds that appeal on merits was pending before Tribunal and when the Tribunal finally decided the appeal on merits, the refund is now being proposed to be denied on the grounds that it was not filed within the prescribed time limit. When the grounds for considering the appeal was the pendency of the appeal before the Tribunal, the Order of the Commissioner (Appeals) dismissing the appeal as pre-mature would not tantamount to the rejection of the original application filed before the Original Authority, which was admittedly within the time limit. Therefore, the original claim of refund has to be decided on merits considering it filed within the time limit without denying on the grounds of limitation, in the facts of the case. Matter remanded to the Original Adjudicating Authority to consider and allow refunds - appeal allowed by way of remand.
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