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2015 (5) TMI 879 - HC - CustomsDenial of refund claim - Where and admittedly there is a nil assessment order, whether the assessee is entitled to claim refund without making a challenge to such assessment order - Held that:- As the provisional assessment as well as the final assessment in respect of all the bills of entry were nil assessment, the question of raising a challenge to the said orders before the Appellate Authority would not arise at all. The appellant cannot be said to be aggrieved by the said orders and consequently, the question of filing any appeal would not arise. The judgment of the Apex Court relied upon by the authorities which levied duties, would not be applicable to the present case. In the cases before the Apex Court, there was an assessment order levying duty which was not challenged. This is not the situation in the present case. In the present case, the assessment order was a nil assessment and no duties were levied and as such, the appellant cannot be said to be aggrieved by such order. In such circumstances, we find that the reliance by the Commissioner (Appeals) and CESTATE on the judgment of the Apex Court in the case of Priya Blue Industries Ltd. (2004 (9) TMI 105 - SUPREME COURT OF INDIA) is not justified in the present case. - appellant cannot be said to be aggrieved with the correctness of the order of nil assessment. The order sanctioning refund passed by the Assistant Commissioner dated 14/12/2007 is accordingly justified. Consequently, the orders passed by the Commissioner (Appeals) and the order passed by the CESTAT cannot be sustained and deserve to be quashed and set aside - Decided in favour of assessee.
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