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TMI Blog2025 (1) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No. 30/2004-CE. The benefit of the said notification was allegedly not availed since the EDI system administered by the Customs appeared to have not uploaded the details of the said Notification. Hence, the respondents along with others had to pay the CVD for obtaining the release of the goods. One such importer M/s. Enterprise International Ltd. challenged the decision of the department before the Commissioner (Appeals) and got an order in their favour with consequential benefits. Department challenged the Order in Appeal before the Tribunal which was dismissed and the Hon'ble Supreme Court vide order dated 5.8.2016 dismissed the appeal of the department [2017 (346) ELT A130 (SC)]. Consequent to the order of the Hon'ble Supreme Court, the respondents filed refund claim for the duty paid at the time of import. The lower authority rejected the refund claim holding that the Bills of Entry had been finally assessed and no appeals had been made against the Order in Original and that the appellants had not paid the duty under protest, vide letters dated 17.7.2018. That respondent by their letter dated 3.8.2018 requested the lower authority to issue a Show Cause Notice a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund. Further the AC (Refund) who is the proper officer for refund and the AC Group who is the proper officer for Assessment, are different officers. The Ld. AR submitted that refund and assessment proceedings are separate and distinct proceedings under CA 1962. The AC (Refund) cannot sit in judgement over the final assessment, and he does not even have the power to change an assessment already made. Hence the order of the First Appellate Authority granting opportunity of personal hearing to the appellant before the AC (Refund) will not change the fact that assessment has not been challenged, and refund claim has been rightly rejected in light of facts that assessment has not been challenged. Just because the respondent states that certain applicants have been granted refund in a similar situation, it cannot be made applicable without examining the facts. Further Article 14 of the Constitution is a positive concept. That no equality can be claimed in illegality is now well settled. Hence the order of remand by the First Appellate Authority merits to be set aside. 3.2 The Ld. Advocate for the respondents submitted that the Assistant Commissioner (Refund) without putting them to no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion that the impugned order could be upheld and the matter be allowed remand on the terms set out in the impugned order. Oral orders were accordingly passed in Court, with detailed order to follow. The daily order sheet dated 29/08/2024 recorded the fact as under; "ORDER Heard both sides. The appeals and Cos are disposed of by upholding the order of the Commissioner (Appeals). Detailed order to follow." 3.4 Subsequently while recording the Final Order it appeared that certain facts and position in law had been overlooked, and the matter required to be recalled and released for fresh hearing. Accordingly, on 19.09.2024, the Bench recorded its recall order as under; ORDER 1. This Bench had on 29.8.2024 while hearing the cases in Customs Appeal Nos. 41347 and 41348/2019 pertaining to Commissioner of Customs, Tuticorin Vs. Prabhavana Impex and M.M. Enterprises, disposed of the matter by upholding the order of the Commissioner (Appeals). Detail orders were to follow. However, on examining the facts of the case, and before passing of a detailed final order determining the issues in the lis, it is felt that certain issues relating to the subject jurisdiction of the Authority w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the impugned order. 5. The Ld. AR stated that as per the judgment cited by the Ld. Counsel for the appellant, in C.P. Aqua Culture (India) Pvt. Ltd. (supra) the Hon'ble High Court was of the view that the Tribunal stating "appeal allowed" without recording the gist of the decision cannot be termed as decision or order or judgment of the Tribunal. Further, the judgment of the Hon'ble Supreme Court in the case of Honda Siel Power Products Ltd. (supra) does not appear to have been brought to the notice of the Hon'ble High Court. The Hon'ble Supreme Court by its judgment had accepted that the Tribunal had the power to recall its own order. This would he stated, apply to an oral order after reserving the matter for a detailed judgment equally as it would apply to the final written order. Hence there is no infirmity in hearing the matter afresh and he prayed that the appeal of revenue may be accepted and the impugned order set aside. 6. We find that the judgment of the Hon'ble High Court C.P. Aqua Culture (India) Pvt. Ltd. (supra) was appealed against by C.P. Aqua Culture (India) Pvt. Ltd., before the Apex Court. While dismissing the petition, the Supreme Court passed the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 995) 1 SCC 724]. The respondent's case will have to be tested on its own merits on law and facts. 9. Considering the loss of time caused due to the Registry's lapse in not furnishing of our order dated 19.09.2024 to the rival parties, preventing them from responding effectively to the issues raised therein and after hearing the party afresh, we feel that the matter can be effectively resolved by remanding the matter to the Original Authority as decided in the impugned order, leaving all issues raised by the parties to this appeal and cross-appeal open. While doing so the Original Authority should come to its own conclusions on merits and in accordance with law, without being influenced by the observation made at para 7 of the impugned order. 10. Having regard to the discussions above we remand the matter back to the Original Authority for de novo adjudication. The lower authority shall follow the principles of natural justice and afford a reasonable and time bound opportunity to the Respondents to state their case both orally and in writing if they so wish, before issuing a speaking order in the matter. The Respondents should also co-operate with the adjudicating authority in com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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