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2014 (1) TMI 429 - AT - CustomsDenial of refund claim - Non provisional assessment of Bill of Entry - Duty under protest not paid - Reassessment of refund claim - Held that:- where there was no lis between the two parties at the time of assessment of the Bill of Entry or at the time of clearance of the goods from the warehouse because it appears that the fact that a notification was issued on the date of clearance was not known to either side. Therefore, it cannot be said that the assessment finalized a dispute which was existing between the two parties - There is nothing in the order which would suggest that a patent mistake which was not adjudicated upon could not be rectified through the refund mechanism under section 27 of the Customs Act In fact in that case the assessee’s refund claim was rejected on the ground that the claim was filed beyond the time limit prescribed and not for the reason that the order was not challenged under section 128. Duty was paid under protest which implies that there was a dispute between the department and the importer initially. In the facts of the present case there was no dispute between the appellant and the Department at the time of import but an assessment was done based apparently on wrong figures which both sides did not notice. By processing the refund claim there is no review of an adjudication done earlier because no dispute was adjudicated by the assessment order. The fact that the appellant could have challenged the assessment under section 128 of the Customs Act cannot be a reason to deny processing of a refund claim if filed within the four corners of the provisions under section 27 of Customs Act - if there was a dispute between the two parties at the time of import where there are inadvertent errors, the remedy under Section 27 can be resorted to without challenging the so called assessment order on the Bill of Entry - matter is remitted to the adjudicating authority for examining the refund claim to see whether the requirement under section 27(1A) of the Customs Act has been complied with and then decide the claim - Decided in favour of assessee.
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