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TMI Blog2007 (9) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... s, in brief, are as follows:- (a) The appellant exported consignments of milk powder during the period from 6-June, 2006 to 7- July, 2006. From 1-6-2006, export cess was not attracted on the milk powder exported by them. However, under a mistake, they have paid the export cess and filed two refund claims of Rs. 70,749/- and Rs. 1,27,396/- on 17-7-2006 and 31-7-2006 respectively. (b) The Original Authority rejected both the refund claims on the grounds that Section 26 is not applicable in their case; that the assessment of shipping bills based on which export cess was paid was not challenged by them; that they have not proved that the burden of duty was not passed on to the consumers. (c)&nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xport duties specified in Section 26. 5. Ld. DR defends the order of the Commissioner (Appeals) and submits that Section 26 should be taken together and Section 26(c) is not independent of sub-sections (a) and (b). There is assessment for export consignments as well; the ratio in the judgement of Hon'ble Supreme Court in the case of M/s. Priya Blue Industries shall be applicable in the case of export assessment also. The unjust enrichment shall apply in every case including cases of export as held in the case of CC, Kandla v. M/s. Ambica Maritime Ltd. [2006 (205) E.L.T. 1007 (Tri. Mumbai)]. 6. I have carefully considered the submissions from both sides. Section 26 of the Customs Act reads as below: Section 26 : Refund of export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable. Such an interpretation is unwarranted. Therefore, I hold that the refund under Section 26 is of export duties where all the conditions listed as (a), (b) and (c) are simultaneously fulfilled. 7. As regards the submission that no assessment per se is done in respect of export consignments the same is not acceptable. The definition of many terms in the Customs Act like duty, assessment, prohibited goods, value, refers to both imported and export goods. In particular, Section 17 clearly deals with the assessment of both imported goods as well as export goods. Therefore, I hold that the exported goods are required to be subject to assessment. In the present, the cess has been paid only in pursuance of an assessment order. It was n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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