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TMI Blog2019 (11) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. Since Commissioner (Appeals) has not decided the issue on merit and had disposed of the appeal stating that appeal do not lie against self assessment made, the matter needs to be remanded back for consideration of issues on merit - Appeal allowed by way of remand. - C/86283-86284/2013 - FINAL ORDER NO. A/86984-86985/2019 - Dated:- 1-11-2019 - Mr. S.K. Mohanty, Member (Judicial) and Mr. Sanjiv Srivastava, Member (Technical) Shri Akhilesh Kangsia, Advocate, for the Appellant Shri Dharmender Singh, Authorised Representative for the Respondent ORDER These appeals are directed against Order in Appeal No 711 712 (Gr. III)/ 2012 (JNCH)/IMP-595 596 dated 11.12.2012. By the impugned order Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remier Agencies [2010 (18) STR 668 (T-Mum)], Nagpur Transwell Power P Ltd [2009 (243) ELT 459 (T-Mum)] and Gimatex Industries Pvt Ltd [2010 (261) ELT 1026 (T-Mum)] rejected the appeals filed. 2.5 Aggrieved by the impugned order, appellants have filed this appeal. 3.1 We have heard Shri Akhilesh Kangsia, Advocate for the appellants and Shri Dharmender Singh, Superintendent, Authorized Representative for the revenue. 3.2 Arguing for the appellants learned advocate submitted that- Hon ble Apex Court while dealing with un amended Section 17 and 47 of Customs Act, 1962 has in case of Escorts Ltd [1994 Sup. 3 SCC 86, has held that the Act does not prescribe any particular form in which the assessment is to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uing for the revenue learned Authorized Representative reiterated the findings in the impugned order. 4.1 We have considered impugned order along with the submissions made in appeal and during the course of arguments on appeal. 4.2 Hon ble Supreme Court has in case of M/s ITC (Civil Appeal No 293-294/ 2009 Order dated 18.09.2019) held as follows: 43.As the order of self assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression Any person' is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re-assessment which is appealable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India 2009 (240) ELT 490 (Bom.) though the High Court interfered to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. 4.3 We are in agreement with counsel for appellant that the issue is squarely covered by the said decision of Apex Court. Since Commissioner (Appeals) has not decided the issue on merit and had disposed of the appeal stating that appeal do not lie against self assessment made, the matter needs to be remanded back for consideration of issues on merit. 5.1 In view of the decision of Hon ble Apex Court referred above we allow the appeals filed by the appellant and remand the matter back to Commissioner (Appeals) for consideration of appeals on merits. (Order pronounced i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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