Indian Toners and Developers Ltd. Vs. Commissioner of Customs - Court Judgment

Excerpt:

.....the correctness of the assistant collector's order sanctioning the refund. in the absence of any appeal against the sanction of refund, commissioner (appeals) suo motu could not have challenged the sanction order. therefore, the order of the commissioner (appeals) is totally illegal and deserves to be set aside and is so set aside. since the commissioner (appeals) has not given any finding regarding the justification for crediting the amount to welfare fund, he is directed to pass fresh orders after affording the appellants necessary opportunity of hearing. it is also made clear that the order for sanctioning the refund amount has become final and cannot be disturbed. the commissioner (appeals) is also directed to examine the merits of the refund of balance amount of rs. 9,660/-, which was denied by the assistant collector.3. the appeal of the appellant succeeds and the matter is remanded to commissioner (appeals) for passing final orders in accordance with the directions contained in this order, after following the principles of natural justice. the impugned order is consequentially set aside to the extent indicated above.

Judgment:

1. The appellants succeeded before the Assistant Commissioner for obtaining a refund of Rs. 44,000/- in respect of imports under Bill of Entry No. IGM/2367/10, dated 441-92 Cash No. HD 411, dated 7-1-93. The original claim was for Rs. 53,660/-, against which the Assistant Commissioner sanctioned Rs. 44,000/-. The aforesaid excess payment occurred on account of calculation errors. The Assistant Commissioner directed that the sanctioned amount be credited to the Consumer Welfare Fund. The appellant's challenged the order-in-original on two grounds :- (ii) The rejection of the claim for the balance amount of Rs. 9,660/-.

The Commissioner (Appeals) vide impugned order held that unless and until the order of assessment is set aside, reversed or modified by the appellate authority, the appellant had no right to claim the refund. He cited the judgment of Hon'ble Supreme Court reported at [2000 (120) E.L.T. 285 (S.C.) - 2000 (40) RLT 131(SC)].

2. On examining the order of the Commissioner (Appeals) it is noticed that the same is clearly without the authority of law. The only challenge before the Commissioner (Appeals), was as to whether or not, the Assistant Commissioner was right in directing crediting of the amount to the Consumer Welfare Fund. Instead of giving a finding on this, aspect, the Commissioner (Appeals) proceeded, as if the Revenue had challenged the correctness of the Assistant Collector's order sanctioning the refund. In the absence of any appeal against the sanction of refund, Commissioner (Appeals) suo motu could not have challenged the sanction order. Therefore, the order of the Commissioner (Appeals) is totally illegal and deserves to be set aside and is so set aside. Since the Commissioner (Appeals) has not given any finding regarding the justification for crediting the amount to Welfare Fund, he is directed to pass fresh orders after affording the appellants necessary opportunity of hearing. It is also made clear that the order for sanctioning the refund amount has become final and cannot be disturbed. The Commissioner (Appeals) is also directed to examine the merits of the refund of balance amount of Rs. 9,660/-, which was denied by the Assistant Collector.

3. The appeal of the appellant succeeds and the matter is remanded to Commissioner (Appeals) for passing final orders in accordance with the directions contained in this order, after following the principles of natural justice. The impugned order is consequentially set aside to the extent indicated above.