TMI Blog2017 (12) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... ot foreclosing the remedy available to the applicant. The situation would have been different, if the Commissioner had declined to entertain the appeal in the year 2012 itself for the reason now assigned in the impugned order. This could have very well been done, since the Commissioner is referring to the decision of M/s.Suryalaxmi Cotton Mills Ltd. Vs. CCE, Nagpur, prior to which the amended Section 27 came into force, i.e., on 08.04.2011. Thus, the Commissioner having entertained the appeals and kept the appeals pending for four long years, cannot dismiss by holding that the appeals are not maintainable, but should have protected the petitioner by issuing appropriate consequential direction. This is more so because a party who comes to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessments were self-assessment and the petitioner has to only file refund claims before the third respondent. 3.Since the petitioner's case is that they have filed appeals before the first respondent, it may not be necessary for this Court to make a thorough factual exercise to examine the correctness of the order, in the light of the decision of the Hon'ble Supreme Court in the case of Priya Blue Industries Ltd. Vs. Commissioner of Customs (Preventive) reported in 2004 (172) E.L.T. 145 (S.C.). 4.The said decision is to the effect that a refund claim contrary to the assessment order is not maintainable, without the order of assessment having been modified in the appeal or reviewed under Section 28 of the Customs Act, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner's case, as there is no decision or order by the assessment group contrary to the self-assessment made by the appellant themselves, the appeals are not maintainable. 8.If a Court or Quasi Judicial authority comes to a conclusion that a petition or an appeal is not maintainable, then the concerned Court or Quasi Judicial Authority has to safeguard the interest of the applicant by not foreclosing the remedy available to the applicant. 9.The situation would have been different, if the Commissioner had declined to entertain the appeal in the year 2012 itself for the reason now assigned in the impugned order. This could have very well been done, since the Commissioner is referring to the decision of M/s.Suryalaxmi Cotton Mills Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere will be a direction to the petitioner to file applications for refund before the third respondent within a period of 30 days from the date of receipt of a copy of this order and if such applications are filed, the third respondent shall process the applications on merits and in accordance with law and not to reject the same on the ground of limitation, as this Court has observed that had the petitioner filed the refund applications instead of filing the appeals before the first respondent in the year 2012, those applications would have been well within the time. 11.Therefore, for all purposes, though the refund applications are being directed to be presented within a period of 30 days from the date of receipt of a copy of this Order, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
