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TMI Blog2008 (2) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... o be paid – held that, once the duty against him has been upheld by the Commissioner (Appeals) vide his earlier order, unless the Commissioner (Appeals) order is set aside the appellant cannot file claim for refund of duty - E/158/2002-Mum - A/336/2008-WZB/C-I/(EB), - Dated:- 28-2-2008 - Justice S.N. Jha, President and Shri K.K. Agarwal, Member (T) Shri Anuj Trivedi, Advocate, for the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assistant Commissioner vide his order dated 29-12-99. The Assistant Commissioner upheld the duty liability on the appellant and imposed penalty of Rs. 50,000/-. This order was appealed by the appellant and the Commissioner (Appeals) vide his order dated 28-2-2001 upheld the duty liability but reduced the penalty to Rs. 40,000/- from Rs. 50,000/-. Meanwhile the appellant filed a refund clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-2001 rejected his appeal on the ground that once the duty against him has been upheld by the Commissioner (Appeals) vide his earlier order, unless the Commissioner (Appeals) order is set aside the appellant cannot file claim for refund of duty. 2. Learned advocate for the appellants submits that the duty was not payable by him as while calculating the total clearance of Rs. 3 crores, the cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals) is set aside, the appellants cannot make any claim for refund of duty which in their perspective was wrongly paid by them. The only course left to them was to file an appeal against earlier order of Commissioner (Appeals) with Tribunal for decision on merits. This having not been done, the plea cannot be taken in a refund application when the order demanding duty has not been set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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