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TMI Blog2008 (2) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal is filed by the revenue against the order-in- appeal No.SVS/320/NGF-ICD/2007, dated 20-9-2007 vide which the Commissioner (Appeals) set aside the order-in-original and directed the adjudicating authority to reconsider the refund application filed by the respondent. 2. The relevant facts that arise for consideration are that the respondent herein imported seven consignments of aluminium ingots and filed bills of entry. The said bills of entry were assessed by the Customs officers as per the declarations filed by the respondents and respondents were directed to pay the amount of duty assessed and education cess thereon. The respondents discharged the duty liability and cleared the consignments. Subsequently the respondents noticed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submission that once there is no challenge of the assessment of the bills of entry, the route of refund claim cannot be taken by the assessee for re-assessment of the bills of entry. He, submits that there is a gross error on the part of the Commissioner (Appeals) while allowing the appeal and directing the adjudicating authority to examine the claim on merits. He submits that the issue is squarely covered in favour of the revenue. 4. Ld. Counsel appearing for the respondents draws my attention to the show cause notice issued by the lower authorities. It is his submission that the show cause notice sought to reject the refund claim of the appellant only on the ground which were mentioned in the show cause notice. It is his submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Considered the submissions made at length by both sides and perused the records. The issue involved in this case is regarding the rejection of refund claim filed by the respondents. I find that the Office of the Assistant Commissioner of Customs ICD issued a show cause notice to the respondents when they filed the refund claim. Grounds which were informed to the respondents for rejection of refund claims are as under: "2. The said refund claims (total 7) were filed by the importer on 1-1-2005 which were returned as incomplete to the importer on 28-3-2005 with the following observations: (i) The grounds of claim are too cryptic and not supported by any documentary evidence. (ii) There is no evidence that the amount claimed as refund i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he chart above (total 7) should not be rejected under Section 27 of the Customs Act, 1962." It can be noticed from the above reproduced grounds that the show cause notice clearly informed the respondents that the refund claim is said to be rejected on the grounds from 1-7 as indicated in the second para. When the respondents made submissions accordingly to the adjudicating authority, the adjudicating authority did not issue any corrigendum to the show cause notice. Subsequently, the adjudicating authority rejected the refund claims of the respondents on the following findings: "27. Thus, I find that the importer filed refund claims without challenging the assessment before the appropriate authority within the stipulated time and without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above reproduced grounds in the show cause notice, that the respondents were never made aware about the issue of non-challenge to the assessed bills of entry. I find strong force in the contention raised by the ld. Counsel that the respondents had been directed to address only those grounds which are indicated in the show cause notice onwards. The Apex Court in the case of Reckitt Colman of India Ltd. (supra) also held as under: "3. It will be remembered that the case of the Revenue, which the appellant had been required to meet at every stage from the show cause notice onwards, was that the said product was a preparation based on starch. Having come to the conclusion that the said product was not a preparation based on starch, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order on these findings also is also not correct. When the respondents were never informed about the ground relied upon by the adjudicating authority to reject the refund claim, and the Commissioner (Appeals) setting aside such order, to my mind that both the orders of the lower authorities are incorrect. 8. The case laws relied upon by the SDR to canvas the point that this being the question of law, can be raised before any form seems to be misplaced. The question of law in this case is without putting the respondents on notice, would be a violation of principles of natural justice. The judgments cited by the SDR were rendered on different context and the facts and circumstances of the current case are totally different. 9. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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