2005 (11) TMI 427

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.... None, for the Respondent. [Order]. - This appeal is preferred by the Revenue against the order in appeal dated 23rd October, 2003 wherein the refund claim of the Respondent was allowed. 2. Relevant facts which arise for consideration are that the Respondents preferred a refund claim to the adjudicating authority for refund of the excess customs duty paid by them by mistake on the ....

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....dent. Hence the Revenue has preferred this appeal. 4. None appeared for the respondent despite notice. 5. Heard the learned DR, perused the records. I find that the Respondent's refund claim was rejected by the adjudicating authority in his order dated 19-8-95 on the grounds of limitation and unjust enrichment. The said order dt. 19-8-95 has relied upon provisions of the Section 28....

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....smuch as that of the adjudicating authority was disagreeable to the OIA dt. 19-6-98, the department should have preferred an appeal. The department chose not to file an appeal against the order-in-appeal dt. 19-6-98; and instead of following the judicial discipline, rejected the refund claim of the Respondents second time, throwing out of window the settled law of judicial discipline as propounded....

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....enue's failure to file an appeal against the findings of the Commissioner (Appeals) order dt. 19-6-98, has restricted the hands of adjudicating authority. The adjudicating authority, in the absence of any appeal against the order dt. 19-6-98 was bound to follow and sanction the refund claim. Department's appeal against the current order in appeal dt. 23-10-2003 is an attempt to make a back door en....