2017 (2) TMI 239 - AT - Customs

Whether the Appellant had a right to file an appeal before the Commissioner (Appeals) against a mere communication/letter dated 10.6.2014? - Held that - Section 128 of the Customs Act, permits an appeal to be filed before the Commissioner (Appeals) against any decision or order passed by an officer of Customs. The words any decision are very wide in their amplitude and would cover a decision holding that the refund applications premature. Such a view is undoubtedly a decision affecting the right of the affected party and is therefore appealable. Whether the Commissioner (Appeals) was right in upholding the view of the Asst. Commissioner that the refund application were premature in view of the pendency of the Show Cause Notices? - Held that - once an application of refund has been filed before the refund sanctioning authority, the said authority is duty bound to decide the refund application one way or the other. The refund application can either be rejected or allowed in part or in full - The provisions of Section 27 do not entitle the refund sanctioning authority to return the refund application by terming the same to be premature - Therefore the action of the Asst. Commissioner in terming the application as premature is really an act of refusal to exercise a statutory duty to decide upon the refund application one way or the other. For this reason also, the order of the lower authorities is untenable - matter remanded to Asst. Commissioner to decide the matter afresh. Appeal allowed by way of remand.

Summary

Issues involved:
1. Maintainability of appeal against a mere communication/letter dated 10.6.2014.
2. Correctness of the view that the refund applications were premature due to pending Show Cause Notices.

Analysis:
Issue 1: The first issue revolves around the appeal's maintainability against a communication/letter dated 10.6.2014. The Tribunal found that under Section 128 of the Customs Act, any decision or order by a Customs officer is appealable. The Tribunal emphasized that a decision declaring refund applications premature is appealable as it affects the party's rights. The Tribunal cited various precedents to support this view, such as Koya & Co. Construction P Ltd vs CCE and Bhagwati Gases vs CCE, Jaipur. The Tribunal set aside the earlier decision and remanded the matter for fresh consideration by the Commissioner.

Issue 2: The second issue concerns the correctness of the view that the refund applications were premature due to pending Show Cause Notices. The Tribunal disagreed with the lower authorities' decision, stating that once a refund application is filed, the refund authority must decide on it. The Tribunal ruled that the Asst. Commissioner's action in deeming the applications premature was a refusal to fulfill the statutory duty of deciding on the refund application. The Tribunal referred to judgments from the Punjab & Haryana High Court and the Madras High Court to support its decision. Consequently, the matter was remitted back to the Asst. Commissioner for a fresh decision on the refund applications within a specified timeframe, considering relevant circulars and judgments.

In conclusion, the Tribunal addressed both issues comprehensively, emphasizing the appeal's maintainability and the incorrectness of deeming the refund applications premature. The judgment highlighted the legal principles and precedents governing such matters, ensuring a fair and just decision in the case.