TMI Blog2017 (1) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 5A of the Customs Act, 1962 before the Appellate Authority, with a further direction to the Commissioner (Appeals) not to raise any objections including those of limitation and maintainability of the appeal and to dispose of the same on merits. Pursuant to the said order, the assessee filed an appeal before the Commissioner (Appeals), Chennai. It appears that the Commissioner passed an order on 28.02.2007, holding that cess is not leviable on export of Prawns/Shrimps and that the cess paid by the assessee needs to be refunded. There was also an order to take into consideration the aspect of unjust enrichment, in accordance with law. 3. It appears that the department not accepting the order of the Commissioner (Appeals), challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee filed the Writ Petition No.149/2015 before this Court. The learned Single Judge directed the writ petitioner/ assessee to approach the Tribunal as against the order of Commissioner. Hence, this appeal. 6. Heard the learned counsel for the appellant assessee and the respondents department. 7. The grounds raised by the assessee is that the review itself is time barred and the review is not maintainable as the appeal has not been filed along with the signed order in original dated 21.07.2011, when it is mandatory to examine the original as per the provisions of Section 129D(2) of the Customs Act. It is submitted that the review has been filed along with the unsigned photocopy of the order without any relevant documents. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or propriety of any such decision or order and may, by order, direct such authority or any officer of Customs subordinate to him to apply to the Commissioner (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Customs in his order. (3) Every order under sub-section (1) or sub-section (2), as the case may be, shall be made within a period of three months from the date of communication of the decision or order of the adjudicating authority. (4) Where in pursuance of an order under sub-section (1) or sub-section (2), the adjudicating authority or any officer of customs authorised in this behalf by the Commissioner of Customs , makes an application to the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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. 12. As per the provision under Section 129D (3) regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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