TMI Blog2021 (12) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bills of Entry cannot be countenanced. In any event, merits of the refund claim of the petitioner would require a proper determination on facts and therefore, the second respondent was required to issue proper show cause notice to the petitioner giving the reasons why refund claim filed by the petitioner should not be rejected. Rejection of the refund claim of the petitioner merely based on a intra-departmental communication is not sufficient. There is no other option to remit the case back to the second respondent to issue a proper show cause notice to the petitioner preferably within a period of 60 days from date of receipt of this order setting out the grounds as to why the refund claim of the petitioner should not be rejected - Petition allowed. - W.P.No.14126 of 2020 And W.M.P.Nos.17538 & 17539 of 2020 - - - Dated:- 24-11-2021 - Honourable Mr.Justice C.Saravanan For the Petitioner : Mr. Bharat Raichandani For the Respondents : Mrs. Hemalatha For the R2 : Sr. Standing Counsel ORDER The petitioner has challenged the impugned communication dated 06.12.2019, whereby the petitioner's refund claim has sought to be rejected on the ground that D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment under the Bills of Entry does not arise. That apart, it is submitted that the petitioner had paid duty at 5 per cent the assessment were also completed based on the declarations in the Bills of Entry by the petitioner at the time of import and therefore, there is no question of filing any appeal against the assessments completed in the received Bills of Entry for which a sum of ₹ 3,01,01534/- has been paid. 2. Learned counsel for the petitioner, further submits that the amount paid by the petitioner in response to summons dated 08.02.2019 of the Directorate of Revenue Intelligence, Mumbai has to be construed as payment made under protest. In any event, the amount has to be appropriated in the manner known to law. Learned counsel for the petitioner, further submits that even otherwise as per the recent decision of the Hon'ble Supreme Court in Canon India Private Limited Vs. Commissioner of Customs, 2021 (376) ELT 3 (SC) the Directorate of Revenue Intelligence have been held to be having no authority to demand tax or appropriate amounts paid by the petitioner and therefore, question of insolvency Section 28 (2) of the Customs Act, 1962 does not arise. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf. 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 person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under section 17(4). Section 128 has not provided for an appeal against a speaking order but against any order which is of wide amplitude. The reasoning employed by the High Court is that since ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. The scope of the provisions of refund under Section 27 cannot be enlarged. It has to be read with the provisions of Sections 17, 18, 28 and 128. 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion 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; 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. 5. Learned counsel for the respondents, submits the writ petition os therefore, liable to be dismissed. 6. By way of rejoinder, the Learned counsel for the petitioner, submitted that the decision of the Hon'ble Supreme Court in referred to supra cited by the learned counsel for the respondents is not applicable to the facts and circumstances of the case inasmuch as the assessment of resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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