2017 (3) TMI 1659 - HC - Customs

Refund claim - the Adjudicating Authority refused the refund on the ground that the order of CESTAT could be implemented only on the same terms on which the Supreme Court passed the interim orders in the case arising out of the Gujarat High Court - Held that - the cause of action for the department to file an appeal arose out of the order of CESTAT dated 30-12-2015. An application for modification of a final order made by the department and which was dismissed on 20-10-2016 cannot extend the period of limitation for the department to file an appeal against the 1st order dated 30-12-2015. The department has chosen to file an appeal, if what is stated across the Bar is correct, only after the order impugned in the present writ petition. Therefore, the finality has attached to the order of the Tribunal in the case of the petitioner cannot be overcome by this post facto remedial measure. Petition allowed.

Summary

Issues:
Challenge to Order-in-Original refusing refund, Appeals rejection by Appellate Authority, CESTAT allowing appeals, Refusal of refund by Adjudicating Authority, Finality of CESTAT decision, Department's appeal filing delay.

Analysis:
The petitioner challenged an Order-in-Original denying refund from a CESTAT order. Three statutory appeals by the petitioner were rejected by the Appellate Authority, but CESTAT allowed them based on a decision confirmed by the Gujarat High Court. The Department mentioned a pending special leave petition before the Supreme Court regarding the CESTAT decision. The CESTAT order of 30-12-2015, allowing the petitioner's appeals, has achieved finality as no further appeal has been admitted. The petitioner sought a refund based on this CESTAT decision, which was refused by the Adjudicating Authority citing Supreme Court's interim orders in a related case. The petitioner contended that the finality of the CESTAT decision should allow the refund.

The Department argued that they filed for a review, dismissed on 20-10-2016, and subsequently appealed to the High Court within the limitation period. However, the cause of action for the appeal arose from the CESTAT's 2015 order, not the review dismissal. The Department's delay in filing an appeal after the CESTAT's order and review dismissal cannot undermine the finality of the CESTAT decision. The Department's post-review appeal attempt does not alter the concluded status of the CESTAT order in the petitioner's case. The Court noted the Department's delay in taking action and upheld the finality of the CESTAT decision in favor of the petitioner.

In conclusion, the Court allowed the writ petition, directing the respondents to refund the amount within eight weeks from the order's receipt. The Court closed any pending miscellaneous petitions in the matter and did not impose any costs on either party.