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TMI Blog2017 (1) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal as against the order of Commissioner (Appeals). 2. The facts of the case, transpires that the assessee is an exporter of Prawns/ Shrimps through Chennai Seaport and were paying Cess at the rate of 0.5% under the provisions of the Agricultural Produce Cess Act, 1940 during 1998-2004. Challenging the levy and collection of cess of 0.5% on export of prawns/ shrimps, the assessee filed W.P. No.13884 to 13887 of 1998 before this Court, on the ground that they are different from fish. While disposing the same, vide order dated 16.12.2006, this Court directed the assessee to file an appeal under Section 5A of the Customs Act, 1962 before the Appellate Authority, with a further direction to the Commissioner (Appeals) not to raise any obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o file an appeal under Section 129D of the Customs Act, 1962. In view of the same, the department filed an appeal before the Commissioner (Appeals) and issued a Show cause cum Demand notice for recovery of the refunded amount. However, an order of stay of recovery was obtained by the assessee before this Court in W.P. No.10737/2012 and so the recovery order was kept in abeyance. The Commissioner (Appeals) passed an order dated 31.10.2014, holding that in terms of limitation and unjust enrichment, the refund is erroneous and ordered for recovery of the refunded amount. As against the same, the assessee filed the Writ Petition No.149/2015 before this Court. The learned Single Judge directed the writ petitioner/ assessee to approach the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legality or propriety of any such decision or order and may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Committee of Chief Commissioners of Customs in its order. (2) The Commissioner of Customs may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority or any officer of Customs subordinate to him to apply to the Commissioner (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apart from that, the order so passed by way of review is in order and produced by the department at this length of time, is allowed. The fact remains that on the point of limitation to file a review, the learned Single Judge has not applied his mind whether such a review can be entertained, after the expiry of the limitation period. 11. In the case on hand, the assessee claims exemption of cess paid at the rate of 0.5%, under the provisions of the Agricultural Produce Cess Act, 1940 for the period 1998 to 2004, especially for Prawns/Shrimps being exported. The appeal filed by the assessee has been entertained. Thereafter, on the ground of time barred claim of the assessee, the department seeks to review the order, which ofcourse have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation, was in question. The assessee was right in approaching this Court to interfere with the said order. The order of the learned Single Judge to approach the Tribunal in this regard, is totally unnecessary. When there is violation of principles of natural justice and the question of maintainability, the same can be questioned under Article 226 and 227 of the Constitution of India. Learned Single Judge has rejected the writ petition solely on the ground that the writ petitioner is the beneficiary. However, we find that the refund has been recovered. They are independent and distinct and are not connected to each other. 14. In view of the above, the Writ Appeal is allowed and the order of the learned Single Judge and the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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