9911796707
TMI Blog2007 (5) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 shall be rejected as barred by unjust enrichment." Before the above final order was passed, the original authority had passed order dated 19-5-2003 sanctioning refund of an amount of over Rs. 1.25 crores to the assessee for the period 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Commissioner and says that it has been passed in disobedience of the Tribunal's and the Appellate Commissioner's directives. Learned consultant for the assessee has urged that the order passed by the Assistant Commissioner on 22-3-2007 should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, 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 case, the departmental authority concerned may arrogate to itself the unwarranted freedom of pushing the assessee into repeated rounds of litigation. 6. We have perused the A.C.'s order and we find that the Assistant Commissioner, instead of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 basis of whatever records were available. The Hon'ble Tribunal's Final Order No. 797-799/2004 dated 21-9-2004 was taken in appeal to the High Court by the Department, but no stay was obtained. Similarly, learned appellate Commissioner's Order-i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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