TMI Blog2010 (2) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... peal under Section 35 ibid is preferable to Commissioner (Appeals) against order/decision by subordinate Central Excise officer. It is difficult to envisage that the said provision of law provides for an appeal against self-assessment - refund allowed - decided in favor of appellant. - E/40/2009 - A/127/2010-WZB/MUM/C-IV/SMB - Dated:- 10-2-2010 - Shri Ashok Jindal, J. Shri G.L. Deshpande, Advocate, for the Appellant. Shri S.S. Katiyar, SDR, for the Respondent. ORDER This appeal is filed by the appellant against the order of the Commissioner (Appeals), wherein he rejected the refund claim holding that the refund claim contrary to assessment order is not maintainable without the order of assessment having been modified in ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred an appeal before the Commissioner (Appeals). The Commissioner (Appeals) after hearing the appellant held that the refund claim is contrary to the assessment order, which was not challenged by the appellant following the decision of the Hon ble Apex Court in the case of CCE, Kanpur v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.) and Priya Blue Industries Ltd. v. Commissioner of Customs (Prev.) - 2004 (172) E.L.T. 145 (S.C.). Aggrieved from the same, the appellant is before me. 3. The learned Advocate for the appellant submitted that this is a case of double payment of duty and there was no assessment done by the Central Excise officers. In that event, the decisions of the Hon ble Apex Court in the Flock (India) Pvt. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sides, I find that the issue involved in this case is as to whether the appellant having made the payment twice is entitled for the refund of excess duty paid without challenging the assessment or not? The learned SDR has submitted that as per Rule 2(b) of the Central Excise Rules, 2002, the assessment includes self assessment of duty made by the assessee and provisional assessment under Rule 7. In the present scenario, the assessee has to file his own return and on the basis of those returns, assessment has to be made and as per Section 35(1) of the Central Excise Act, 1944, any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a (Commissioner of Central Excise), may appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round that duty had been wrongly levied. In the case of import of the goods, Bill of Entry is to be filed by the importer and the same is to be assessed by the Customs officer and without challenging the said order, the refund claim is not acceptable. This was the rule laid down by the Hon ble Apex Court in the case of Priya Blue Industries (supra). The same is also not applicable in the facts of this case. The reliance placed by the learned DR in the case of Eurotex India (supra) is also based on Flock (India) Ltd. and Priya Blue Indus. Referred herein above, which is also of no help to the Revenue. 7. On the other hand, going though the facts and circumstances of the case, I find that it is a case of double payment made by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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