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2019 (1) TMI 730 - AT - CustomsMaintainability of Refund claim - assessment order not challenged - case of appellant is that the duty was paid under mistake of law - Section 27 of the Customs Act, 1962 - Held that:- The refund claim is not maintainable till the order of assessment is modified in view of the decision of the Apex Court in case of Priya Blue [2004 (9) TMI 105 - SUPREME COURT OF INDIA]. However exercising the extraordinary jurisdiction under Article 226 of Constitution of India, High Court has directed for amendment of the assessment order. Tribunal being the creation of statue do not have such extraordinary jurisdiction as can be exercised by the High Court. In fact the decision goes against the Appellant’s as the ratio decidendi of the same is that refund claim is not maintainable without modification of the assessment order. Thus the clear position which emerges from all the decisions of Hon’ble Supreme Court and High Courts is that the refund claim under section 27 is not maintainable unless the order of assessment is modified in the appellate proceedings. Appeal dismissed - decided against appellant.
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