TMI Blog2017 (8) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be done in a writ petition especially when the petitioner has an effective alternate remedy by way of an appeal. Therefore, this Court is inclined to direct the petitioner to file an appeal as against the impugned order as the appellate authority has jurisdiction to call for the original files, verify the date of application, whether the application was complete in all respects and if it was not so, why it was not returned within 48 hours, whether the petitioner had sought for time to produce the original challans, whether the original challans were produced along with the application for refund or was it submitted only on 09.09.2014, what was the stage of the matter before the Hon'ble Supreme Court between the date of the Tribunal's ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 21.11.2010 directing the Tribunal to pass a detailed order and pursuant to the said direction, the Tribunal passed a detailed order on 27.12.2010. This order was entirely in favour of the petitioner thereby holding that calculation of duty by the petitioner in respect of the exports effected by them from 1999 and earlier was erroneous. The petitioner filed an application for refund on 03.03.2011. According to the petitioner, the application was complete in all respects and if it was not so, the respondents were duty bound to return the same within 48 hours of filing such application. Admittedly, this having not been done, the petitioner would state that the application for refund was complete in all respects. In the mean time, the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard, the attention of this Court was drawn to the order passed by the Assistant Commissioner of Central Excise dated 16.01.2015 sanctioning refund and in the said order, the said Assistant Commissioner has recorded that the petitioner has produced the original TR-6 challans numbering 114. Therefore, it is submitted that the said finding rendered by the second respondent in the impugned order is factually incorrect and it is only with a view to get over the petitioner's claim for interest. In support of the said contentions raised by the petitioner, the learned counsel for the petitioner referred to the decisions of the High Court of Judicature at Bombay in Swaraj Mazda Limited v. Union of India, reported in 2009 (235) E.L.T. 788 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being adjudicated was only the entitlement for refund of the duty paid by the petitioner and the order has been passed taking note of the judgment of the Hon'ble Supreme Court dated 11.03.2014. 8. One more aspect which should be taken note of is that the petitioner's application for refund and other similar cases also appears to have been kept pending awaiting the decision of the Hon'ble Supreme Court before whom the appeal was pending and disposed of only in the month of March 2014. Therefore, the other issue would be whether the Department would be justified in refusing to pay interest for the said period, though the application for refund was complete in all respects. Thus, these issues are purely factual. 9. The decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al's order, ie. 04.06.2009 and the judgment of the Hon'ble Supreme Court on 11.03.2014 etc. These issues have to be necessarily thrashed out before the appellate authority which is a fact finding authority and would be able to re-appreciate the facts which are available on record. Therefore the petitioner has to necessarily avail the appellate remedy. 11. Accordingly, the writ petition is disposed of directing the petitioner to present an appeal before the Commissioner of Central Excise (Appeals), Chennai, within a period of sixty days from the date of receipt of a copy of this order and when such application is filed, the Commissioner of Central Excise (Appeals) shall entertain the appeal without reference to the limitation and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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