TMI Blog2014 (11) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... RT), the Hon'ble Delhi High Court observed that "Explanation-II" of Section 27 of the Act deals with the 3rd category of situations. Such situation may occur after the passing of the final assessment, on account of rectification under Section 154 of the Act or because of any other reasons, as a result of which the final order suffers an amendment or a change and some amount becomes refundable. It is seen from the file note as reproduced in the impugned order that after passing of final assessment, the Bill of Entries were audited on 5.4.2007 and it was forwarded to refund section. Then, it is apparent after final assessment and group audit that the Respondent is eligible for refund of excess amount paid by them. In this context, it is noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007. Commissioner (Appeals) mainly following the Public Notice No.45/2004 dt. 10.3.2004 observed that the Bills of Entry were audited on 5.4.2007 and the importer had time upto 4.10.2007 for filing the refund claim. Accordingly, the Commissioner (Appeals) set aside the adjudication order and allowed the appeal filed by the respondent with consequential relief as per law. 3. The Ld. Authorized Representative on behalf of Revenue submits that the refund claim was filed under Section 27 of the Customs Act, 1962. Explanation 2 to sub-section (1) of Section 27 of the Act provides that limitation of one year or 6 months as the case shall be computed from the date of adjustment of duty after the final assessment thereof. In the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, the learned advocate on behalf of the respondent reiterates the finding of the Commissioner (Appeals) and particularly, Public Notice No.45/2004. He relied upon the recent decision of Hon'ble Delhi High Court in the case of Commissioner of Customs Vs Indian Oil Corporation - 2012 INDLAW DEL 980. In the present case, respondent had paid the duty provisionally and the excess amount as assessed during the finalization of the assessment would be refunded automatically without filing any refund application in terms of the afore cited case law. The Ld. A.R. in his rejoinder submits that this issue was not taken up by the respondent before the lower authorities. 5. After hearing both sides and on perusal of the records, I find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 28(C) as the applicant may furnish to establish that the amount of duty and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person: xxx xxx xxx xxx Explanation II.- where any duty is paid provisionally under section 18, the limitation of one year or six months, as the case may be, shall be computed from the date of adjustment of duty after the final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other reasons, as a result of which the final order suffers an amendment or a change and some amount becomes refundable. In the present case, it is seen from the file note as reproduced in the impugned order that after passing of final assessment, the Bill of Entries were audited on 5.4.2007 and it was forwarded to refund section. Then, it is apparent after final assessment and group audit that the Respondent is eligible for refund of excess amount paid by them. In this context, it is noted that by Public Notice No.45/2004, the procedure was laid down for filing refund claim arising out of finalization of provisional assessment, as under :- all refund claims are filed with AC/DC (Refund) only after finalization of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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