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TMI Blog2014 (12) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the statute. The same was rejected by the appellate authority stating that Section 128 was not attracted. - The appeal preferred by the petitioner against Ext.P1 is well within time and as such, it ought to have been considered, passing appropriate orders on merits. Commissioner directed to reconsider the matter with regard to the claim for refund preferred by the petitioner passing appropriate orders in accordance with law. - Matter remanded back - Decided in favour of assessee. - WP(C).No. 16331 of 2014 (N) - - - Dated:- 17-9-2014 - MR. P.R.RAMACHANDRA MENON, JJ. FOR THE APPELLANT : SRI.MANUEL THOMAS, ADV. FOR THE RESPONDENT : SRI.THOMAS MATHEW NELLIMOOTTIL, SC, ADV. JUDGEMENT 1. Rejection of the refund c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .09.2013, wherein an endorsement was made by the 3rd respondent/Commissioner in the form of a clarification, to the effect that, appeal would be possible only against an order passed by ADC/JC/DC/AC and for want of any such order, the appeal was not maintainable under Section 128 of the Customs Act. 4. The petitioner moved the 3rd respondent further by way of Ext.P13, followed by Ext.P14 representation referring to the sequence of events, which was rejected by the said respondent as per Ext.P15, stating that the appeal was belated, having been preferred after the stipulated period of 60 days. This in turn is under challenge in this writ petition. 5. Heard the learned counsel for the petitioner and the learned Standing Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter. It was pursuant to Ext.P6 that the petitioner filed Ext.P7 appeal before the 3rd respondent. In Ext.P7, the date of service of the impugned order has been clearly mentioned by the petitioner against 'column No. 4', that the same was served to the petitioner on 23.03.2012. The appeal was preferred on 8.5.2012, which is well within the time prescribed under the statute. The same was rejected by the appellate authority stating that Section 128 was not attracted. 8. Section 128 of the Customs Act reads as follows: Sec.128. Appeals to Commissioner (Appeals) (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Commissioner of Customs may appeal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity of hearing before passing Ext.P9 order. 9. After hearing both the sides and on going through the provisions of law, particularly the mandate under Section 128 of the Act, power is vested with the competent authority to deal with the situation so as to render justice, passing appropriate orders. The appeal preferred by the petitioner against Ext.P1 is well within time and as such, it ought to have been considered, passing appropriate orders on merits. 10. In the said circumstance, the impugned orders are set aside and the 3rd respondent is directed to reconsider the matter with regard to the claim for refund preferred by the petitioner passing appropriate orders in accordance with law. This shall be done after giving an opport ..... X X X X Extracts X X X X X X X X Extracts X X X X
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