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2019 (5) TMI 882 - HC - CustomsRefund of excess duty paid - assessment of the proper value of the units and consignment imported not made - amendment of Bill of Lading is called for to reflect any change in Unit price but is not effected to - HELD THAT:- Prior to 2011, when Section 27 was amended, a person was entitled to seek refund only in a situation where the claim arose out of the payment made by him in pursuance of an order of assessment or borne by him in pursuance of an order of assessment - Subsequent to amendment of Section 27, the provisions of Section 27 have been considerably widened, as a result of which, after 08.04.2011, a claim for refund would lie in respect of any amount paid or borne by a person. The sole ground on which the refund application has been returned is that the Bill of Entry submitted by the petitioner has not been re-assessed by the concerned assessing officer. This observation falls in the face of the position that the passing of an order of assessment is not within the control of an assessee. It is for the Assessing Officer to take up a Bill of Lading and frame an assessment thereon. If the statement in the impugned letter is to be carried its logical conclusion, no refund may be sought by any person unless an order of assessment is made, which itself is only at the discretion of an Assessing Officer. Therefore, the statement is clearly contrary to law and untenable. The Assistant Commissioner ought not to have insisted upon an order of assessement having been passed. The petitioner is permitted to re-submit its application for refund within a period of two(2) weeks from today. The said applications will be considered by the respondents on merits and in accordance with law - petition allowed.
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