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TMI Blog2025 (1) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... or usage having in the territory of India the force of law . As stated in Mafatlal Industries [ 1996 (12) TMI 50 - SUPREME COURT] , Article 265 does not itself lay down any criteria for testing the validity of a statute, when it speaks of law , it refers to a valid law but the validity has to be determined with reference to other provisions of the Constitution. Considering the loss of time caused due to the Registry s lapse in not furnishing of our order dated 19.09.2024 to the rival parties, preventing them from responding effectively to the issues raised therein and after hearing the party afresh, the matter can be effectively resolved by remanding the matter to the Original Authority as decided in the impugned order, leaving all issues raised by the parties to this appeal and cross-appeal open. Conclusion - Refund claims are not maintainable without challenging the original assessment orders. Procedural fairness and adherence to natural justice are paramount. The remand order for reconsideration of refund claims upheld. Appeal disposed off by way of remand. - SHRI P. DINESHA, MEMBER (JUDICIAL) AND SHRI M. AJIT KUMAR, MEMBER (TECHNICAL) Shri Anoop Singh, Authorized Representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order following the principles of natural justice. Aggrieved by the said order the department has filed these appeals. 2.2 The respondents herein had also filed cross-objections to the appeals filed by the appellant-department against the observations contained in para 7 of the impugned order. 3. Shri Anoop Singh, Ld. Authorized Representative appeared for the appellant-department and Shri N. Viswanathan, Ld. Advocate appeared for the respondents. 3.1 During the hearing on 29.8.2024 the Ld. AR submitted that the Ld. Commissioner Appeal has passed an order remanding the issue to lower authority to revisit the case in accordance with law after affording a PH and adhering to principles of natural justice. The impugned order has not appreciated the context and factum of the case. The Ld. Commissioner Appeals had failed to note that the BE s had been assessed without lodging any protest, and no appeal has been filed against the assessment order by the appellant. The assessment Order is a fait accompli, since it has not been challenged or set aside in terms of Section 128 of CA, 1962. The Assistant Commissioner Refunds cannot hence sit in judgment over the final assessment made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not being provided with any reply to their representation moved separate writ petitions before the High Court which were disposed of by granting liberty to the cross applicants to challenge the said order without expressing any opinion on merits. The cross applicants accordingly challenged the orders dated 17.07.2018 before the First Appellate Authority raising not only violation to the principles of natural justice but also discrimination as per Article 14 of the Constitution on account of grant of identical refunds to two other importers. The Ld. Advocate submitted that the First Appellate Authority ought to have considered the unassailable fact that the EDI administered by the customs department was admittedly faulty at the material time due to which reasons only they were made to pay the CVD which was otherwise exempted and not payable by them leading to the collection of the duty without the authority of law attracting Art 265 of the Constitution and according the refund of the duty ought to have been paid to them accepting that the said payment and collection was under a mistake and that non sanction of refund would lead to gross injustice. The First Appellate Authority acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications. 2. In Honda Siel Power Products Ltd. v. Commissioner of Income-Tax, [2007] 295 ITR 466 (SC) the Hon ble Supreme Court by invoking the doctrine of prejudice has stated that if prejudice has resulted to the party, which is attributable to the tribunal s mistake, error or omission and which error is a manifest error, then the tribunal would be justified in rectifying its mistake, which had been done in the said case by recalling the original order. In Grindlay s Bank v. Central Govt. Industrial Tribunal [AIR 1981 SC 606], the Hon ble Supreme Court held that, A Tribunal should be construed to be endowed with such ancillary and incidental powers as are necessary to discharge its function effectively to do justice between the parties, unless there is any indication in the statute to the contrary. 3. For the reasons stated the matter is hence being recalled and released for hearing afresh on 15.10.2024. 4. When the matter after adjournments came up for hearing on 10/12/2024 the Bench was shocked and dismayed to hear from the Respondents Advocate that no reason for the fresh hearing was communicated to them. The Ld. AR also confirmed the same. The order dated 19.09.2024, was neit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority of law attracting Art 265 of the Constitution and according the refund of the duty ought to have been paid to them accepting that the said payment and collection was under a mistake. It is true that if no tax can be collected except by authority of law, the same logic would prevail for retention of amounts collected without the authority of law. However, that amount has to be claimed as provided for under the Act. We find that Article 13(1)(a) of the Constitution defines law to include any Ordinance, Order, Bye-law, Rule, Regulation, Notification, custom or usage having in the territory of India the force of law . As stated in Mafatlal Industries (supra), Article 265 does not itself lay down any criteria for testing the validity of a statute, when it speaks of law , it refers to a valid law but the validity has to be determined with reference to other provisions of the Constitution. In Mafatlal Industries Ltd. Vs Union of India [1997 (89) E.L.T. 247 (S.C.)] the Hon ble Apex Court stated that if Article 265 of Constitution is literally interpreted and in isolation, and refund ordered, in cases where excise duty has been passed on, it will result in a mockery, totally ign ..... X X X X Extracts X X X X X X X X Extracts X X X X
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