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2015 (11) TMI 1400 - CESTAT BANGALOREDenial of refund claim - Reassessment in terms of Section 17 (4) of the Customs Act - Provisional assessment - Held that:- Once an assessment is kept open, and resultantly provisional, the same would be provisional for all the aspects. It cannot be said that the assessment was finalized vis-a-vis a legal issue of addition of export duty in the assessable value and was provisional for the other aspects. Such assessment has been rightly held to be not a final assessment by the Commissioner (Appeals). - refund cannot be filed directly without putting a challenge to the assessment order are not directly applicable to the facts of the present case. The same relate to a situation where there was a lis between the assessee and the Revenue and that lis stands finally adjudicated in the adjudication order. When the order of assessment itself says that the same is open to reassessment, the assessee can admittedly file the refund claim by praying for reassessment of the order, which the Assistant Commissioner has himself allowed. The non-challenge to such an order, before filing the refund claim, would not act as rebuttal to the assessee’s claim. - no justifiable reason to interfere in the impugned order of Commissioner (Appeals). - issue of inclusion of export duty in the assessable value of the final product to be exported is not in dispute and also stands settled by the Board’s Circular dated 10.11.2008. As such we agree with the appellate authority that the differential excess duty paid by the respondent is required to be refunded to them. - Decided against Revenue.
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