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2019 (11) TMI 71

..... imited [2019 (9) TMI 802 - SUPREME COURT] where it was held that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund. The issue is squarely covered by the said decision of Apex Court. Since Commissioner (Appeals) has not decided the issue on merit and had disposed of the appeal stating that appeal do not lie against self assessment made, the matter needs to be remanded back for consideration of issues on merit - Appeal allowed by way of remand. - C/86283-86284/2013 - FINAL ORDER NO. A/869 .....

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..... e Supreme Court has in case of Priya Blue Industries Ltd 2004 (172) ELT 145 (SC)] laid down the law stating that in case of incorrect assessment resulting in excess payment of duty, refund can be processed only if the assessment order is set aside. 2.4 After hearing the appellants Commissioner appeal by relying on the decisions in case of Premier Agencies [2010 (18) STR 668 (T-Mum)], Nagpur Transwell Power P Ltd [2009 (243) ELT 459 (T-Mum)] and Gimatex Industries Pvt Ltd [2010 (261) ELT 1026 (T-Mum)] rejected the appeals filed. 2.5 Aggrieved by the impugned order, appellants have filed this appeal. 3.1 We have heard Shri Akhilesh Kangsia, Advocate for the appellants and Shri Dharmender Singh, Superintendent, Authorized Representative for th .....

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..... [2016 (343) ELT 429 (T-Chennai)] CIPLA [2017 (348) ELT 579 (T-Del)] Issue is now settled by the decision of the Apex Court in case of ITC Limited [Judgement dated 18.09.2019 in the Civil Appeal No 293-294 of 2009]. 3.3 Arguing for the revenue learned Authorized Representative reiterated the findings in the impugned order. 4.1 We have considered impugned order along with the submissions made in appeal and during the course of arguments on appeal. 4.2 Hon ble Supreme Court has in case of M/s ITC (Civil Appeal No 293-294/ 2009 Order dated 18.09.2019) held as follows: 43.As the order of self¬assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression An .....

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..... oceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the ent .....

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..... be within the ken of Section 27 to set aside the order of self¬assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. 4.3 We are in agreement with counsel for appellant that the issue is squarely covered by the said decision of Apex Court. Since Commissioner (Appeals) has not decided the issue on merit and had disposed of the appeal stating that appeal do not lie against self assessment made, the matter needs to be remanded back for consideration of issues on merit. 5.1 In view of the decision of Hon ble Apex Court referred above we allow the appeals filed b .....

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