2003 (4) TMI 308

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..... ondent. [Order per : S.S. Sekhon, Member (T)]. - The issue in this appeal is whether the refund claim made under Section 27 of the Customs Act, 1962 could be rejected on the grounds that the classifications and chargeability to C.V. Duty has been determined and the said assessments have not been challenged. The lower authorities have rejected the refund applications only on the ground that in r .....

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..... (i)     after considering the provisions of Section 27 of the Customs Act, 1962 it was held that if the refund claim cannot be made as the order of assessment itself has not been got set aside by filing a separate appeal against such an order, then provisions of Section 27(1)(i) will be rendered totally nugatory and meaningless. If this view is to be accepted, it would mean t .....

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..... d refund, the rejection of the same was found not correct. It was set aside and the matter was remanded back to the Assistant Collector to decide the claim of the assessee. (iii)   It was also held that availing of a refund claim would itself amount to filing a request for re-assessment and the Bill of Entry by the proper order and thereafter a refund would require to be met as per the .....

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..... that the provisions of the Section 11B of the Central Excise Act and Section 27 were not para-materia. (b)     The Advocate for the appellants have relied upon the case of MSCO Pvt. Ltd. v. U.O.I. & Ors. - 1985 (19) E.L.T. 15 (S.C.) and on Shiv Shankar Dal Mills v. State of Haryana & Others (AIR 1980 SC 1037) to submit that if money recovered under colour of public laws is la .....

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..... ry to refer this matter to a Larger Bench to resolve the dispute being now created with the existence of these two contrary views. The question to be placed for resolving before the Larger Bench would be "For refunds under Section 27 of the Customs Act, 1962 whether the view held in the Calcutta case should prevail or the view held in the Jaipur case should prevail." 3. The matter may theref .....

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