TMI Blog2020 (1) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of speaking orders is rejected by the lower authority that itself becomes a decision by the lower authority which can be appealed against to the Commissioner before the Commissioner (Appeals). However, by not issuing the speaking orders or giving any reply to their requests for speaking order, the officer has denied the appellant their legitimate right to challenge the reassessments. The assessing officer are directed to issue speaking orders as sought by the appellant in cases where the Bills of Entry were re-assessed. This will enable the appellants to understand the reasons for re-assessment and if aggrieved, challenge such re-assessments - appeal dismissed. - Customs Appeal No. 30495 of 2019 - A/31111/2019 - Dated:- 6-12-2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order. Hence this appeal. The First Appellate Authority relied on the case law of Priya Blue Industries Vs Commissioner of Customs, Ahmedabad [2004 (172) ELT 145 (SC)] in which it was held as follows: 6. .Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 17 and self assessment procedure has been introduced, the words in pursuance of an order of assessment in section 27(1)(a) have been deleted. He would therefore, submit that their case pertains post 08.04.2011 and they were entitled to file a claim for refund without challenging the order of assessment. He relied on the case law of Aman Medical Products [2010 (250) ELT 30 (DEL)] and Micromax Informatics Ltd., [2016 (335) ELT 466 (DEL)] in which it was held that where there is no order of assessment, refund claim can be filed without challenging the assessment. He fairly submits that the aforesaid two judgments of the Hon ble High Court of Delhi were also under challenge before the Larger Bench of the Hon ble Apex Court in the case of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sanctioned unless the underlying assessment (including self assessment) has been appealed against and therefore there is no infirmity in the impugned order of the First Appellate Authority passed relying on the cases of Priya Blue Industries (supra) and Flock India (supra). 5. I have considered the arguments on both sides and perused the records. The issue of refund has been under examination at various judicial fora. In the case of Priya Blue Industries (supra) and Flock India (supra) the Hon ble Apex Court had held that where a refund raises out of an order of assessment such refund cannot be sanctioned unless the underlying order of assessment itself has been appealed against and modified by the appellate forum. The reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hon ble Apex Court in the case of ITC Ltd., (supra). It is now settled by the Hon ble Apex Court that the refund cannot be sanctioned in any case including in case of self assessment unless the assessment is itself is challenged. 31. It is apparent from the aforesaid discussion that the endorsement made on the bill of entry is an order of assessment. It cannot be said that there is no order of assessment passed in such a case. When there is no lis, speaking order is not required to be passed in across the counter affair . 38. No doubt about it that the expression which was earlier used in Section 27(1)(i) that in pursuance of an order of assessment has been deleted from the amended provision of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of refund claim by the Commissioner (Appeals) on the ground that the bills of entries has not been challenged, I find that in view of the ratio of the judgment of Hon ble Larger Bench of the Apex Court in the case of ITC Ltd., the appeal is liable to be rejected and the impugned order is liable to be upheld and I do so. If the appellant s bills of entries have been reassessed and they sought speaking orders which have not been issued to them or the request for issue of speaking orders is rejected by the lower authority that itself becomes a decision by the lower authority which can be appealed against to the Commissioner before the Commissioner (Appeals). However, by not issuing the speaking orders or giving any reply to their requests ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
