TaxTMI 
TaxTMI 
2017 (2) TMI 239
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the matter needs to be remanded back to the original authority for de-novo adjudication and therefore after allowing the application, for early hearing with the consent of both sides. 2. This appeal is directed against Order in Appeal No. MUM CUSTM-SXP-40/2016-17 dated 27.5.2016 passed by the Commissioner of Customs (Appeals), Mumbai Customs, Zone-I holding that the appeal filed against a mere letter/communication dated 10.6.2016 issued by the Asst. Commissioner of Customs (Refund) returning the refund applications filed by the Appellant as being premature, was not maintainable as such a communication/letter was neither an order nor a decision for the purposes of Section 128 of the Customs Act, 1962. However, despite holding that the app....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... s eligibility to receive the refund amount, order in original/in revision/in appeal and any other order and any other document considered necessary in support of the claim. The Appellant replied to this requisition vide its letter dated 23.5.2014by submitting documents including challan for payment and copies of the audited balance sheets wherein the amount shown as deposited was shown as a receivable from Customs to prove absence of unjust enrichment. Instead of then processing the refund application on merits, the Asst. Commissioner issued a communication dated 10.6.2014 stating that the refund applications had been found to be premature as one of the Show Cause Notice dated 21.11.2013 answerable to the Commissioner of Customs (Import), ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sion holding that the refund applications premature. Such a view is undoubtedly a decision affecting the right of the affected party and is therefore appealable. The finding of the Commissioner (Appeals) is that such a communication is merely an administrative action is absurd as the Asst. Commissioner, while deciding a refund application filed under Section 27 of the Customs Act, is required to act as a quasi-judicial authority. The legal position in this regard is settled by several decision of this Tribunal such as Koya& Co. Construction P Ltd vs CCE 20100 (262) ELT 1014 (Tri-Bang), Hyderabad Industries Ltd vs CCE 2002 (145) ELT 463 (Tri-Del), Gujarat Ambuja Cement Ltd vs CCE 2006 (197) ELT 39 (Tri-Del) and Bhagwati Gases vs CCE, Jaipur ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted the matter back to the Commissioner (Appeals) for a decision afresh, but for the fact that the Commissioner (Appeals) has also, in his order agreed with the view of the Asst. Commissioner that the refund application was pre-mature. In para 11 the Commissioner (Appeals) has held as under: "11. On going through the communication, I find that the communication is only in the nature of a letter which can neither be considered as an Order nor can it said to be a decision . For, the Assistant Commissioner has yet to process both the refund applications and only a deficiency memo dated 5.3.2014 has been issued so far. As on date of communication, I find that neither a order nor a decision has been taken with reference to this deficiency memo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... present case between the two parties on the question whether such payments had been made voluntarily or under duress. The High Court held that the question whether the payment was voluntary or under coercion was irrelevant and that as long as there was an assessment and demand, the amount deposited could not be appropriated. The relevant paragraph of this judgement is extracted below. "13. As far as the amount deposited by the petitioners is concerned, case of the petitioners is that the same was deposited under coercion. Case of the respondents was that the same was deposited voluntarily. Whatever be the position, unless there is assessment and demand, the amount deposited by the petitioners cannot be appropriated. No justification has ....