Home Case Index All Cases Customs Customs + HC Customs - 2021 (1) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (1) TMI 1044 - HC - CustomsEntitlement of Refund without challenging the order of assessment which has attained finality - Applicability of N/N. 10 of 2006 - HELD THAT:- The Supreme Court in PRIYA BLUE INDUSTRIES LTD. VERSUS COMMISSIONER OF CUSTOMS (PREVENTIVE) [2004 (9) TMI 105 - SUPREME COURT] has held that under Section 27 of the Customs Act, 1962, a claim for refund can be made by any person who had (a) paid duty in pursuance of an order of assessment or (b) a person who had borne the duty. It has further been held that unless the order of assessment can be reviewed under Section 28 of the Act and / or modified in an appeal, that order of assessment stands. The duty would be payable as per the order of assessment. It has also been held that refund claim is not an appeal proceeding and an officer considering a refund claim cannot sit in the appeal over an assessment made by a competent officer and cannot review an order of assessment - In view of the aforesaid enunciation of law, it is evident that a person is not entitled to claim refund of duty without challenging an order of assessment. In the facts of the case, there is no material placed on record to show that there is any challenge made to the assessment order. Applicability of N/N. 10/2006 dated 01.03.2006 - HELD THAT:- In the factual situation of the case and in view of the fact that even though under Entry No.4 of the Tariff Notification, the items mentioned therein are exempted for payment of customs duty, however, until and unless the respondent challenges the order of assessment, he is bound to pay the customs duty as assessed. He is not entitled to the benefit of refund - the substantial question of law is answered in the affirmative and in favour of the revenue. Appeal allowed - decided in favor of appellant.
|