2011 (3) TMI 234

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..... Advocate, for respondent   Per: P.G. Chacko   This application filed by the Revenue (appellant) seeks stay of operation of the impugned order wherein the learned Commissioner (Appeals) allowed refund of an amount of customs duty without time-bar. After hearing both sides, we are of the view that the appeal itself requires to be disposed of at this stage. Accordingly, we take up the app .....

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..... as time-barred by the original authority, which held that the refund claim had been filed beyond six months from the date of payment of duty and hence liable to be rejected as time-barred. Aggrieved, the respondent preferred an appeal to the Commissioner (Appeals) who set aside the lower authority s decision and directed it to reconsider the refund claim, bearing in mind that the finalization of a .....

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..... e entitlement of the assessee in the context of finalization of the provisional assessments and, for the assessee, the requirement was to apply for refund of any excess amount of duty found upon such finalization. Such refund application could be filed under Section 27 of the Customs Act within a period of six months from the date of adjustment of duty after the final assessment. Explanation II to .....

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..... s not provisional. The averment to the contra made in the present appeal is without any factual basis and, for that reason, the very basis of this appeal would collapse. It is not deniable that the provisional assessments were finalized by the Assistant Commissioner of Customs concerned and this fact duly notified to the Assistant Commissioner of Customs (Refunds). A correspondence between the two .....

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..... e has also been fair enough to leave the matter to the lower authority for verification of facts and final orders on the refund claim. There is no reason to interfere with the appellate Commissioner s direction to the original authority not to reject the refund claim as time-barred. In the result, this appeal of the Revenue is dismissed. The stay application also gets dismissed.  
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