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2018 (5) TMI 1243 - AT - CustomsRefund claim - rejected on the ground that the appellant cannot claim the refund directly without challenging the assessment order (bill of entry), in view of the Apex Court decision in the case of Priya Blue Industries ltd. vs. Commissioner [2004 (9) TMI 105 - SUPREME COURT OF INDIA]? - Held that: - in the present case, there is no lis between the Department and the appellant in claiming the benefit of N/N. 52/2011 - the impugned order denying the refund on the ground that the assessee has not challenged the assessment order which is final is not sustainable in law. The authorities below rejected the refund claim relying upon the decision of Priya Blue and have failed to distinguish the issue involved in the Priya Blue and Flock (India) case and in the present case - In an identical issue, the Division Bench of this Tribunal in the case of Bennet Colman and Co. [2008 (7) TMI 204 - CESTAT Bangalore] has considered both the decisions of the apex court in the case of Priya Blue and had distinguished the same and has relied upon the decision of the apex court in the case of Shree Hari Chemicals vs. UOI [2005 (12) TMI 95 - SUPREME COURT OF INDIA], where it was held that refund cannot be denied on ground of non-challenge to assessment order. Case remanded back to the original authority to consider the refund claim after considering the law declared by the Tribunal and the High Court - appeal allowed by way of remand.
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