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2017 (1) TMI 965 - HC - CustomsLevy of cess - Agricultural Produce Cess Act, 1940 - export of Prawns/Shrimps - refund of cess paid by appellant - unjust enrichment - Held that: - The appeal filed by the assessee has been entertained. Thereafter, on the ground of time barred claim of the assessee, the department seeks to review the order, which ofcourse have been entertained by the department, after an expiry of the limitation period of 90 days. Under such circumstances, without looking into the merits of the case, the learned Single Judge directed the appellant herein to approach the Appellate Tribunal. Considering that the review has been made belatedly, whether it is untenable or not, there appears to be unjust enrichment as fixed by the department. As such, the amount refunded should not have been recovered, which was being paid by the assessee to the department. In consideration of the provisions under Section 129D (2) and the admitted dates that has been cited in the writ petition, the review is barred by limitation and hence the same is liable to be quashed. When there is violation of principles of natural justice and the question of maintainability, the same can be questioned under Article 226 and 227 of the Constitution of India. Learned Single Judge has rejected the writ petition solely on the ground that the writ petitioner is the beneficiary. However, we find that the refund has been recovered. They are independent and distinct and are not connected to each other. Order of the learned Single Judge and the order dated 31.10.2014 of the Commissioner (Appeals) is set aside, which is barred by limitation - appeal allowed - decided in favor of appellant.
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