TMI Blog2018 (2) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... remanded to the Adjudicating Authority to consider the refund claim on merit - Appeal allowed by way of remand. - Appeal No. C/11570/2017 - Order No. A/10225 / 2018 - Dated:- 31-1-2018 - Dr D. M. Misra, Hon'ble Member ( Judicial ) For the Appellant : None For the Respondent : Ms Nitina Nagori, Authorised Representative ORDER Per : Dr D.M. Misra, None present for the appellant. 2. This is an appeal filed by the appellant against OIA-JMN-CUSTM-000-APP-015-17-18 passed by the Commissioner (Appeals) of Central Excise, Customs and Service Tax-AHMEDABAD. 3. A written submission has been filed by the appellant requesting to dispense with their presence on the scheduled date of hearing and decide the case on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period involved in the present case is after 1.4.2011. Needles to mention, the relevant provision governing refund of Customs duty ie., Sec. 27 has been amended with effect from 1.4.2011. The amended provision is reproduced as below: 27. Claim for refund of duty. - (1) Any person claiming refund of any duty or interest, - (i) paid by him; or (ii) borne by him, may make an application in such form and manner as may be prescribed for such refund of to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest : Provided that where an application for refund has been made before the date on which the Finance Bill, 2011 recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on such duty, paid by the importer or the exporter, as the case may be, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and interest, if any, paid on such duty, on imports made by an individual for his personal use; (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty, to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75; (f) the duty and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the requisite manner and form as prescribed, it is incumbent on the authority to deal with such an application. Where there is an assessment order, the authority will take it into account in deciding the application for refund. If such assessment order has been reviewed or modified in appeal such further order will obviously be taken into account. In other words, under Section 27 of the Act, as it now stands, it is not open to an authority to refuse to consider the application for refund only because no appeal has been filed against the assessment order, if there is one. 8. In view of the above principles of law laid down by the Hon ble Delhi High court, post amendment to Sec 27, w.e.f. 1.4.2011 there is no necessity to file appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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