2004 (9) TMI 105 - SC - Customs

Refund under Customs - Maintainability of appeal - Held that:- Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order - Even under Rule 11 under the Excise Act the claim for refund had to be filed within a period of six months - The words "in pursuance of an Order of Assessment" only indicate 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 - Following decision of Collector of Central Excise v. Flock (India) Pvt. Ltd. reported in [2000 (8) TMI 88 - SUPREME COURT OF INDIA] - Decided against assessee.