9911796707
TMI Blog2016 (12) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... order is liable to be set aside - It is surprising that the authorities empowered to review the two orders also failed to enable the necessary rectification despite being mandated to call for and examine orders-in-original and orders-in-appeal to ascertain their legality and propriety. Apparently, an order that was not detrimental to revenue, no matter its abundance of illegality, is justification sufficient for disregarding statutorily mandated obligations. We suggest that the Central Board of Excise & Customs issue suitable instructions to its field formations to avoid recurrence of such blatant disinclination to discharge duties of office. We set aside the impugned order and restore the refund application to the competent authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approval followed by notice dated 28 th April 1989 demanding duty of ₹ 1,31,888.55/- for the period from 1 st February 1988 to 20th January 1989. The appellant challenged these notices in a writ petition filed before the Hon ble High Court of Bombay which accorded a stay subject to furnishing a bond for the amount demanded in the notice and discharge of further duty liabilities by paying duty under protest. Thus appellant paid an amount of ₹ 50,02,398/- till the disposal of the writ petition on 10 th November 2003 and appellant filed claim for refund of this amount on 5th December 2003. The claim was rejected on the ground that duty paid under protest had been allegedly collected from the customers which the original aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e grounds of appeal is that the endorsement on the letter of protest was an internal communication which was not sufficient to establish that the burden of duty had been passed on without a more detailed scrutiny. On a perusal of the order of the original authority, we find no reference to any notice to show cause as to why the claim should not be rejected. In the absence of such notice, the appellant was, undoubtedly, hard put to produce evidence to the satisfaction of the original authority. Without such notice, the competent authority has failed to discharge the burden to place the assessee under notice of the proposed grounds of rejection. The first appellate authority has failed to take cognisance of this glaring lapse thus vitiating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... text of the finding, such as it is, is not in accordance with the law. The first appellate authority, by concurring, has participated in this unauthorized exercise of retaining the unauthorizedly collected duty. 9. The proper course of action to be pursued when the applicant for refund has not been able to satisfy that duty collected without authority of law has not been passed on to customers is to sanction the refund and credit it to the Fund. For having failed to notice this departure from legality and propriety and for not remedying the flaw, the impugned order is liable to be set aside. 10. It surprising that the authorities empowered to review the two orders also failed to enable the necessary rectification despite being mandate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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