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2013 (10) TMI 62 - HC - CustomsRefund of provisional assessed duty deposited under protest - period of limitation - Held that:- no final assessment under Section 17 has been passed much less any speaking order has been made indicating as to why the benefit claimed by the appellant, i.e., exemption from payment of the custom duty vide Notification No.21/2002 dated 01.03.2002 has been denied to it. It is nobody's case that the importer confirms its acceptance of the assessment in writing. On the contrary, from the very beginning, the appellant's claim is that it is exempted from payment of customs duty on the imported cargos in question vide Notification No.21/2002 dated 01.03.2002. Therefore, as contemplated under Section 17, the Proper Officer is obliged to pass a speaking order of assessment, which has not been done in the instant case. Principle of natural justice - Held that:- There is no dispute over the legal proposition settled by the Hon'ble Supreme Court in the case of Priya Blue Industries Ltd. (2004 (9) TMI 105 - SUPREME COURT OF INDIA). It goes without saying that refund flows from an order. So long as an order of assessment stands, the duty assessed would be payable as per the said order of assessment. If that order is not challenged, no refund can be claimed. The officer empowered to consider different claims for refund cannot review the order of assessment for which right of appeal has been created under the statute. In the instant case, as held above, no order of assessment as contemplated under Section 17(2) read with Section 17(5) has been passed. Therefore, there is no question of filing any appeal challenging the order of assessment. Assuming that the petitioner has not filed any appeal challenging the provisional assessment order, he cannot be deprived of his statutory right to challenge a final assessment order. When an assessee is aggrieved by the assessment order, the recourse open to him is to file an appeal before the appellate forum instead of asking for refund directly by short-circuiting the process of appeal prescribed to be followed under the Act, before the appropriate authority. Proper officer directed to pass a speaking order in terms of Section 17(2) read with Section 17(5) of the Act, 1962 after giving an opportunity of hearing to the appellant.
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