TMI Blog2006 (6) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us in these appeals is whether such refund claim could be entertained without challenging the assessment order. Admittedly, the assessment order, which appeared on the bill of entry was never challenged by the appellant. The Commissioner (Appeals) relying on the decision of the Hon ble Supreme Court in CCE Kanpur v. Flock (India) Pvt. Ltd. reported in 2000 (120) E.L.T. 285 (SC), negatived the refund claim on the ground that the assessment was not appealed against by the present appellant. 3. The learned Counsel for the appellant submitted that making of refund application was sufficient and that even without challenging the assessment order the application could be entertained under the provisions of Section 27 of the Act. He relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. was rendered in the context of the provisions of Section 27 of the Customs Act, 1962, we would prefer to reproduce paragraphs 5 and 6 of the judgment to point out its ratio which, in no certain terms, lays down that so long as the order of assessment stands, the duty would be payable as per that order and refund claim cannot be filed without the order of assessment being reviewed or modified :- 5. 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 been strenuously submitted that the words in pursuance of an Order of Assessment necessarily imply that a claim for refund can be made without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order. 6. The contention that three Judges Bench in Karnataka Power Corporation (supra) has taken a contrary view on this issue is not borne out from that judgment. Reliance was placed on paragraph 2 of the judgment in Karnataka Power Corporation Ltd. in support of the contention that the earlier view in Flock (India) Pvt. Ltd. was departed from by the Larger Bench. In paragraph 2 of the judgment in Karnataka Power Corporation Ltd., the Hon ble Supreme Court made the following observations :- 2. It is plain from what has been stated above, the Tribunal has misdirected itself. There is no question but t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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