2018 (1) TMI 222 - AT - Customs

Refund claim - duty paid under protest - Held that - When the appeal record carrying letter dated 28.9.2006 was examined that revealed no reason against rejection of the refund claimed by the appellant. A bald communication was sent to the appellant by the Assistant Commissioner in respect of a quasi judicial proceeding pending before him. Pendency of appeal in Tribunal has made both parties to suffer. They were under impression that such pendency of the appeal before Tribunal has barred the Authority below from the exercise of jurisdiction. Therefore they could not complete adjudication against show cause notice dated 28.9.2006 - Having appreciated the reasons of delay it may be ordered that the appellant should file reply to show cause notice within a month of receipt of this order and bring the proceeding to an end participating for hearing on the date fixed by learned Commissioner. Learned Authority recording pleadings and evidence shall pass appropriate order within a month of last date of hearing or before 31.3.2018 whichever period is earlier. Appellate order set aside.

Issues:
1. Refund claim rejected by the Authority below.
2. Appeal before Commissioner (Appeals) dismissed as premature.
3. Appeal before Tribunal against the order of the Commissioner (Appeals).
4. Delay in the proceeding due to preoccupation of officers.
5. Denial of refund despite completion of assessment and payment under protest.
6. Confusion regarding proper course of action under law.
7. Pendency of the appeal in Tribunal affecting the adjudication process.
8. Order for the appellant to file a reply to the show cause notice and complete the adjudication process within a specified timeframe.

Analysis:
1. The appellant made a refund application against the assessed Bill of Entry for duty paid under protest, which was rejected by the Authority below. The Commissioner (Appeals) dismissed the appeal as premature since an adjudication was pending. The appellant then approached the Tribunal against this order of dismissal.

2. The delay in the proceeding was attributed to the preoccupation of officers in tax administration. The officers assured that the records were now available, and the proceeding would be expedited subject to the Tribunal's order and the appellant's reply to the show cause notice.

3. The appellant argued that the duty paid under protest upon completion of assessment should have been refunded. Despite seeking a refund after three years, it was denied by the Department, leading to the appeal before the Commissioner (Appeals) and subsequently the Tribunal.

4. Upon examination of the appeal record, it was found that the rejection of the refund lacked substantial reasoning. The quasi-judicial proceeding was pending, causing confusion and prejudicing the interest of justice due to the lengthy litigation process spanning 11 years.

5. The show cause notice aimed to change the classification sought by the appellant, although the Bill of Entry had been assessed based on the appellant's declaration. The Tax Administration's actions were criticized for appearing to disregard the law, leading to prolonged litigation.

6. The Tribunal acknowledged the difficulties faced by both parties and recognized the need to expedite the adjudication process. The order directed the appellant to file a reply to the show cause notice promptly and participate in the hearing to bring the proceeding to a conclusion within a specified timeframe.

7. Consequently, the appellate order was set aside, and the adjudication proceeding initiated by the show cause notice was instructed to be completed within the prescribed time frame, ensuring due process of justice.

This detailed analysis of the judgment highlights the issues surrounding the refund claim, the delays in the proceeding, and the directions given by the Tribunal to expedite the adjudication process while upholding the principles of justice and law.

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