9911796707
TMI Blog2007 (5) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal authority vide paras 14(c) and (d) of Final Order dated 21-9-2004 ibid: "(c) In respect of the bills of entry covering imports through Chennai Air port during the period 1986-87 to 199-91, provisional assessments of which have already been finalized by the original authority, the assessee shall claim refund of duty under Section 27 of the Customs Act, while in respect of the bills of entry covering imports made through the Airport from 6-4- 1994 onwards, the original authority shall finalise the provisional assessments in accordance with law and principles of natural justice, whereupon the assessee may claim refund within the prescribed period of limitation under Section 27. (d) No refund claim in any of the above categories sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -9-2004. It appears from the records that an earlier application of the assessee for the same relief was considered by this Bench and disposed of as per Misc. Order No. 125/07, dated 27-2-2007, wherein the original authority was directed to pass final order in terms of the Appellate Commissioner's order dated 30-3- 2005 within 10 days. The present application was filed after one month since then for want of action on the part of the original authority. Meanwhile, learned Assistant Commissioner of Customs (ACC) passed Order-in-Original No. 71/2007 dated 22-3-2007 "rejecting" the refund claim in question and retaining the amount in the Consumer Welfare Fund. The present application of the assessee refers to this order of the Assistant Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Final Order dated 21-9-2004 and the Appellate Commissioner's order dated 30-3-2005. We reject the plea that, being an appealable order, it is not assailable in the present proceedings. Where this Tribunal, after considering the merits of a case, directs a departmental authority, under Section 35C(1) of the Central Excise Act, to do a particular thing within specified parameters and is satisfied in due course of time, that its direction has been flouted, it can intervene under Rule 41 of the CESTAT (Procedure) Rules and pass such orders as may be necessary to give effect to its direction and to secure the ends of justice, unless its direction has been stayed by High Court or Supreme Court. If this power is not exercised in an appropriate cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. We think that it needs to be taken note of by the higher authorities exercising supervision and control over the officer. 7. It is crystal clear that the Assistant Commissioner was defying the specific direction issued by the Tribunal in Final Order dated 21-9-2004 as well as the specific direction issued by the learned Commissioner (Appeals) in order dated 30-3-2005. These directions were addressed to the Assistant Commissioner and it was incumbent on him to carry the same into effect by refunding the excess amount paid by the assessee. The A.C. has admitted his misfeasance while deposing before us on 28-3-2007. He deposed thus: "….All the relevant records were not available to me and I was con strained to take a decision on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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