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TMI Blog2016 (5) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... he refund application. Based on such an order, the Assistant Commissioner has granted relief. The impugned order cannot be sustained for the reason that the Ld. Commissioner (Appeals) has merely stated that the appellant has not challenged the assessment. In the absence of any ground on merit, that the classification arrived at by the Adjudicating Authority is erroneous, which has not been done in the instant case, the impugned order is liable to be set aside and the order passed by the Original Authority granting refund is restored. - Decided in favour of appellant - Appeal No. C/40050/2015 - Final Order No. 40700 / 2016 - Dated:- 3-5-2016 - SHRI P.K. CHOUDHARY, JUDICIAL MEMBER For the Petitioner : Shri S. Krishnanandh, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 and allowed the appeal. The department being aggrieved with this order had filed appeal before the Tribunal. The Tribunal vide final order no.487/08 dated 16.5.2008, held that 4. The learned Commissioner (Appeals) in the impugned order directed the original authority to determine the admissibility or otherwise of the refund claim under Section 27 of the Customs Act. It was an open remand. I do not see any reason why it has to be disturbed inasmuch as it is open to both sides to present their respective contentions before the original authority. Let that authority consider the Tribunals larger Bench decision ibid as also the case law relied on in the present appeal of the Revenue. It is also open to the respondents to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed an appeal before the Commissioner of Customs (Appeals), Chennai. The Ld. Commissioner (Appeals), had stated that the appellant has not challenged the assessment. Without change in the assessment the question of refund does not arise and the sanction of refund was erroneous and had allowed the appeal filed by the department. 4. Being aggrieved with this order, the present appeal has been filed by the appellant represented by Shri S. Krishnanand, Advocate, who contended that in the earlier order passed by the Commissioner of Customs (Appeals), vide Order-in-Appeal No. C.Cus.397/2007, dated 27/9/2007, he had set aside the Order-in-Original No.5839/2007, dated 31/7/2007, and had directed the original authority to determine the admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first order passed by the Ld. Commissioner (Appeals) in order dated 27/9/2007, directed the Adjudicating Authority to consider the issue in terms of Section 27 of the Customs Act, which was also upheld by the Tribunal. In my view, the Assistant Commissioner in his order dated 10/11/2010, had no other option except to decide the refund application. Based on such an order, the Assistant Commissioner has granted relief. The impugned order cannot be sustained for the reason that the Ld. Commissioner (Appeals) has merely stated that the appellant has not challenged the assessment. In absence of any ground on merit, that the classification arrived at by the Adjudicating Authority is erroneous, which has not been done in the instant case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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