TMI Blog2013 (8) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-2012 - D.M. Misra, J. Appellant Rep by: Shri B. Saha, Adv. Respondent Rep by: Shri S. Chakraborty, Asstt. Commr. (AR) Per: D.M. Misra: This is an Appeal filed against the Order-in-Appeal bearing No. Kol/Cus/CKP/177/2010 dated 15.06.2010 passed by Commissioner of Customs (Appeals), Kolkata. 2. Briefly stated the facts of the case are that the Appellant had imported 45 bales of Scoured New Zealand Wool against Bill of Entry No.444183 dated 28.11.2008. The goods were assessed to duty by the Customs Department and the Appellant cleared the goods on 02.12.2008 on payment of Additional Customs Duty. Subsequently, the Appellant had filed a Refund Claim of Rs.1,06,515/- on 21.01.2009 on the ground that the imported goods were exempt from payment of Additional Customs Duty in terms of exemption Notification No.20/2006-Cus dated 01.03.2006. It is claimed that the said exemption Notification was not taken into consideration by the Department at the time of assessment of the Bill of Entry and hence, they were entitled to refund of duty of Rs.1,06,515/- paid wrongly by them. Learned Assistant Commissioner of Customs rejected the Refund Claim on the ground that the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not claim any exemption from payment of Additional Customs Duty under Notification No.20/06-Cus dated 01.03.2006 by mentioning the same in the relevant Bill of Entry filed by them. Even after assessment, the Appellant chose to file a Refund Claim on 21.01.2009, but failed to challenge the Assessment Order before any appellate forum by filing an appeal, as permissible under the relevant provisions of Customs Act. Learned AR submitted that the assessed Bill of Entry is itself a decision or order which can be challenged before the Commissioner (Appeals), if the Appellant are aggrieved by the said assessment. In this connection, he has referred to a judgement of the Hon'ble Bombay High Court in the case of Karan Associates vs. CC(Import), Mumbai 2009 (236) ELT-23 (Bom.). Further, he has submitted that the learned Commissioner (Appeals) has rightly referred to the ratio of the Hon'ble Supreme Court in Priya Blue Industries' case (supra) and in Flock India Pvt. Ltd.'s case (supra) in upholding the Order of the Lower Authority. Further, he has submitted that the ratio of the judgement of the Hon'ble Delhi High Court in the case of Aman Medical (supra) cannot be applied in the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim of the appellant by relying upon the decision of the Apex Court in the case of Priya Blue Industries Ltd. (supra) cannot be faulted." 5.1. I find that the Hon'ble Apex Court first in the Flock India's case (supra) has held in clear terms that in absence of an appeal challenging the assessment order, no refund application is maintainable for excess amount of duty, if any, paid. It is also observed that if an assessee fails to challenge an order of assessment issued by proper authorities, but resorts to file a refund claim for relief, then such approach would disturb the very scheme of the statute and would create uncertainty in the process of levy and collection of duty. The Hon'ble Apex Court at para 10 of the Flock India's case (supra) observed as - "10. Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order." 5.3. The aforesaid principle laid down by the Hon'ble Apex Court is clear and unambiguous. The basic philosophy denying refund without challenging an Assessment Order, as held by the Hon'ble Apex Court, rests on the principle that the proceedings of refund and filing of appeal against an assessment order are two separate proceedings and the scheme under the Act meticulously provides relief to the assessee, when the assessment order is not acceptable to him. It provides that when an assessee is aggrieved by the assessment order, the recourse open to him is to file an appeal before the appellate forum instead of asking for refund directly by shortcircuiting the process of appeal prescribed to be followed under the Act, before the appropriate authority. 5.4. I find that the judgement of the Hon'ble Punjab and Haryana High Court in Bansal Alloys' case (supra) relied by the learned Advocate, is not applicable to the facts of the present case. In the said case, the duty was paid on the quantity of goods declared in the respective bills of entry, which we ..... 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