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TMI Blog2017 (2) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the view of the Asst. Commissioner that the refund application were premature in view of the pendency of the Show Cause Notices? - Held that: - once an application of refund has been filed before the refund sanctioning authority, the said authority is duty bound to decide the refund application one way or the other. The refund application can either be rejected or allowed in part or in full - The provisions of Section 27 do not entitle the refund sanctioning authority to return the refund application by terming the same to be premature - Therefore the action of the Asst. Commissioner in terming the application as premature is really an act of refusal to exercise a statutory duty to decide upon the refund application one way or the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the appeal was not maintainable the Commissioner (Appeals), has gone into the correctness of the view taken by the Asst. Commissioner and agreed with the same. This part of the order is also under challenge before us. 3. Heard both sides and perused the records. 4. On perusal of the records, it transpires that the appellant had, in the course of a DRI investigation into import of second hand cranes made a duty deposit of ₹ 4.14 crores. On conclusion of investigations, seven separate show cause notices were issued to the appellant wherein the aggregate demand for duty on imports made by the Appellant was quantified to be only ₹ 69,99,283/-. Accordingly a claim for refund of the balance amount of ₹ 3,44,00,717 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner of Customs (Import), NCH, Mumbai I proposing appropriation of the deposit of ₹ 4.14 crores was yet to be adjudicated. This letter further stated that a fresh refund application could be submitted by the Appellant, in case any refund became due to it after the adjudication of the show cause notices. Aggrieved by this letter, an appeal was filed by the appellant before the Commissioner (Appeals), which was dismissed on two independent counts; first that the communication/letter dated 10.6.2014 was a mere administrative action against which no appeal could be filed under Section 128 of the Customs Act and, secondly that he agreed with the prima facie view expressed by the Asst. Commissioner that both the applications were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 (Tri-Del) and Bhagwati Gases vs CCE, Jaipur 2008 (226) ELT 468 (Tri-Del). The relevant passage of the Tribunals order in the case of Bhagwati Gases sums up the legal position in this regard and is extracted below. 8. It would thus appear that the question as to whether particular letter or communication amounts to order or decision so as to make the appeal maintainable would depend on facts of each case. If on consideration of the facts and circumstances, it is found that the order communicated by the impugned letter is such as to affect the rights of the party, the appeal should be maintainable. We put a pointed question to the learned Departmental Representative that if the appeal is held to be not maintainable, what would be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has been taken with reference to this deficiency memo. Therefore, under the circumstances, I would agree with the prima-facie view expressed by the Assistant Commissioner that both the applications were premature till the referred show cause notice is finally heard and disposed off by the Commissioner. 8. We may state at the outset that the view of the Assistant Commissioner in his letter dated 10.6.2014 not at a prima facie view, as observed by the Commissioner (Appeals). The Asst. Commissioner was categorical and emphatic in saying that the refund application was premature as the Show Cause Notices were pending adjudication. The Commissioner (Appeals) has also unequivocally endorsed this view of the Asst. Commissioner, though he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posited by the petitioners cannot be appropriated. No justification has been shown for retaining the amount deposited, except saying that since it was voluntarily deposited. In view of this admitted position, the petitioners are entitled to be returned the amount paid. A division bench of the Madras High Court in the case of Sanmar Foundaries Ltd vs Commissioner reported in 2015 (325) ELT 854 held that the revenue had no right to retain amounts deposited in the course of an investigation, unless such amounts had been paid either towards a confirmed demand or if such payments were being made in terms of Section 11A(6) of the Central Excise Act, 1944, which corresponds to Section 28(2) of the Customs Act. Various judgments, including the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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