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2015 (1) TMI 441 - AT - CustomsRefund claim - Export of ROM - duty was paid without availing the benefit under Notification No. 62/2007-Cus dated 3.5.2007 - Appellant filed Shipping Bills in respect of export of ROM (Mixture of Iron Ore Fines and Lumps) and paid the duty as per the Tariff - Held that:- In the Shipping Bills the appellant had not declared the goods as Iron Ore Fines. The consignment is in fact of ROM. On assessment of Shipping Bills and in pursuance to that the appellant had paid the duty. It is well settled law that the assessment order passed by the assessing authority is an appealable order under Section 28 of the Customs Act, 1962. The appellant had not challenged the assessment order and file the refund claim and in the refund claim they challenged the assessment order. We find that the Hon'ble Supreme Court in the case of CCE, Kanpur vs Flock (India) Pvt Ltd (2000 (8) TMI 88 - SUPREME COURT OF INDIA) held that the assessment order cannot be challenged in the refund claim. In the case of Priya Blue (2004 (9) TMI 105 - SUPREME COURT OF INDIA) the Hon'ble Supreme Court followed the decision in the case of Flock (India) Pvt Ltd (supra). The Hon'ble Supreme Court while interpreting the words "in pursuance of an order of assessment" under Section 27 of the Customs Act only indicate that the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in appeal or reviewed a claim for refund can be maintained. We find that in the present case as the duty has been paid in pursuance of the assessment made by the assessing officer and that order has not been challenged. - Decided against assesse.
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