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2019 (11) TMI 71

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..... nce 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/86984-86985/2019 - Dated:- 1-11-2019 - Mr. S.K. Mohanty, Member (Judicial) and Mr. Sanjiv Srivastava, Member (Technical) Shri Akhilesh Kangsia, Advocate, for the Appellant Shri Dharmender Singh, Authorised Representative for the Respondent ORDER These appeals are directed against Order in Appeal No 711 & 712 (Gr. III)/ 2012 (JNCH)/IMP-595 & 596 dated 11.12.2012. By the impugned order Commissioner (Appeals) has rejected the appeal file .....

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..... (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 the revenue. 3.2 Arguing for the appellants learned advocate submitted that- Hon ble Apex Court while dealing with un amended Section 17 and 47 of Customs Act, 1962 has in case of Escorts Ltd [1994 Sup. 3 SCC 86, has held that the Act does not prescribe any particular form in which the assessment is to be made. The B/E presented by the importer and signed by the assessing officer itself is an assessment order. After amendments made b .....

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..... nts 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 Any person' is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re-assessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self assessment is an order of assessment as per section 2(2), as such, it is appealable in case any pers .....

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..... 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 entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India 2009 (240) ELT 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Co .....

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