TMI Blog2024 (4) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... hority could not have assumed original jurisdiction and proceeded further with the matter. The Appellate Authority could have only quashed the Show Cause Notice and the proceedings emanating therefrom while reserving the right of the Proper Officer to initiate appropriate proceedings in accordance with law. In view of the above and particularly in view of the fact that the course adopted by the Appellate Authority is not acceptable in law, the impugned order dated 17.04.2023 is set aside to the extent that it decides the claim of the petitioner on merits. The finding returned by the Appellate Authority that the Show Cause Notice has been issued by an incompetent authority and the adjudication order has been passed without any application of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, who could have issued the Show Cause Notice. 5. Learned counsel for the Petitioner submits that though the Show Cause Notice was issued by an incompetent officer, the adjudication order has been passed by an Assistant Commissioner, whose authority is not under challenge. She, however, submits that since the very basis of the adjudication order was the Show Cause Notice, the entire proceedings stand vitiated. 6. Issue notice. Notice is accepted by learned counsel appearing for respondents. With the consent of parties, the petition is taken up for final disposal. 7. Perusal of the Order-In-Original shows that the Appellate Authority in paragraph 10.1 of the impugned order has adverted to the aspect of the validity of the Show Cause Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause Notice had been issued by an incompetent authority and reply to the Show Cause Notice had also been considered by the authority not competent in law and the authority competent had not applied its independent mind while rejecting the application, the Appellate Authority proceeded to consider the case of the petitioner on merits and thereafter, upheld the rejection of the refund application. 12. We are of the view that the course adopted by the Appellate Authority is not sustainable for the reason that once the Appellate Authority comes to the conclusion that the Show Cause Notice was issued by an officer who was not competent; reply was also considered by an incompetent authority and the Competent Authority had not applied its independ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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