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TMI Blog2016 (8) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... k to the original authority for deciding the issue of refund on merit and also to vacate the protest lodged by the Appellant as per their letters dated 11.04.2012 and 12.04.2012. - Matter remanded back. - Appeal No. C/76555/14 - Order No. FO/A/75836/2016 - Dated:- 17-8-2016 - Shri H. K. Thakur, Member (Technical) Shri S.C.Ratho Shri B.Singh, Consultants for the Appellant Shri K.C.Jena, ADC(AR) for the Revenue ORDER Per Shri H. K. Thakur This Appeal has been filed by the Appellant against Order-in-Appeal No. 414/CUS(Exp)/KOL(Port)/2014 dated 01.09.2014 passed by the Commissioner of Customs(Appeals), Kolkata as first appellate authority. 2. Shri S.C.Ratho (Consultant) and Shri B.Singh (Consultant) appeared on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That CESTAT, Bangalore in this case has held that filing of refund claim is itself a challenge of the assessment order passed by the proper officer on the bills of export. 3. Shri K.C.Jena, ADC(AR) appearing on behalf of the Revenue relied upon the case law of Commissioner of Customs (Appeals) v. Ace Designers [2015 (329) ELT 109(Mad.)] where it has been held that refund cannot be claimed when the order of assessment was not challenged. It is the case of the ld.AR that while passing this Order Madras High Court has relied upon the case law of Priya Blue Industries Ltd. v. Commissioner [2004 (172) ELT 145(SC)] and Collector v. Flock (I) Ltd. [2000 (120) ELT 285(SC)]. It was also his case that the contrary decision of Delhi High Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons were made by the Apex Court in this case in para 13 :- 13. Section 11A provides for a right of issuance of show cause notice, if, according to the Department, duty of excise has been erroneously refunded to a party. In the event of such erroneous refund of excise duty, the competent authority may then issue such a show cause notice as provided for under Section 11 A, in which case the assessee has to show cause as to why the aforesaid amount of refund, which is erroneously refunded, should not be recovered from him. In such a case, there is no question of filing any appeal, as appropriate remedy as provided under Section 11A is available. 5.1 In the present case once the duty was paid under protest, the onus was on the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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