2008 (9) TMI 671

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..... nt. [Order]. The applications for refund of duty of different amounts were sanctioned by separate orders of the Deputy Commissioner, and directed to be credited to the Consumer Welfare Fund. The importers filed appeals before the Commissioner (Appeals), who by a common impugned order rejected the claims for refund on the ground that the importers had. not challenged the assessment order .....

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..... he refund claims ought to have been paid over to them, as they had sufficient documentary evidence to establish that they have not passed on the incidence of duty on the goods to their customers but borne such duty burden themselves. The Commissioner (Appeals) however, instead of examining the issue raised before him in the appeal, went on holding that the appellants have no right to claim refund .....

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..... . 137 (Tri-LB) holding that refund claim is not maintainable, in the absence of any challenge to the assessment order do not relate to cases where the duty has been paid under protest. In these circumstances and also for the reason that the Commissioner (Appeals) rejected the appeals of the importers on a ground not raised in the appeal filed before him by the importers, I set aside the impugned o .....

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