TMI Blog2014 (1) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... ter initially. In the facts of the present case there was no dispute between the appellant and the Department at the time of import but an assessment was done based apparently on wrong figures which both sides did not notice. By processing the refund claim there is no review of an adjudication done earlier because no dispute was adjudicated by the assessment order. The fact that the appellant could have challenged the assessment under section 128 of the Customs Act cannot be a reason to deny processing of a refund claim if filed within the four corners of the provisions under section 27 of Customs Act - if there was a dispute between the two parties at the time of import where there are inadvertent errors, the remedy under Section 27 can be resorted to without challenging the so called assessment order on the Bill of Entry - matter is remitted to the adjudicating authority for examining the refund claim to see whether the requirement under section 27(1A) of the Customs Act has been complied with and then decide the claim - Decided in favour of assessee. - Appeal No. C/137/2007 - Final Order No. 40618/2013 - Dated:- 9-12-2013 - Shri Mathew John, J. For the Appellant : Shri N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim on 23.10.2001 asking for refund of excess duty paid. The Department did not process the refund claim till the year 2006. Finally, the Department rejected the refund claim vide Order-in-Original No. 5591/2006 dated 16.11.2006. The adjudicating authority held that the Bill of Entry was not assessed provisionally. Neither was duty paid under protest. Hence he ruled that the refund claim involved re-assessment and as per the decision of the Hon ble Apex Court in the case of M/s. Super Cassette Industries Vs. Commissioner of Customs -2004 (163) ELT A116 (SC) and M/s. Priya Blue Industries Vs. Commissioner of Customs 2004 (172) ELT 145 (SC) re-assessment cannot be done in a refund claim without challenging the original assessment and therefore refund claim was rejected. The appellant filed appeal before the Commissioner (Appeals), who upheld the order of the original authority. Aggrieved by the order of the Commissioner (Appeals), the appellant has filed this appeal. 2. Arguing for the appellant, the learned Advocate submits that both the lower authorities have not disputed the fact that the tariff value prevailing on the date of removal of the goods from the warehouse sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal in the case of Tata Iron Steel Co. Ltd. Vs. Commissioner of Customs -2006 (202) ELT 719 where a refund due to clerical error/accidental slip or omission was allowed by the Tribunal after noting the pronouncement of the Apex Court in the case of Priya Blue Industries (supra). He relies on para 2.1 of the said decision which reads as under:- 2.1. The Customs Manual of Instructions has been issued on 11th September, 2001 by the Central Board of Excise Customs (in short the Board ). In Chapter 15 of the said Manual it has been clarified that in cases where excess payment of duty has been made due to incorrect assessment by the Customs authorities, the importer must file a claim under Section 27 of the Customs Act for refund of the excess amounts. The relevant portion of the Manual [Para 1 of Ch. 15] is produced herein below:- On import and export of goods, at times, it is found that the duty had been paid in excess of what was actually leviable on the goods. Such excess payment may be due to lack of information on the part of the importer/exporter or non-submission of documents required for claim of lower value or rate of duty. Sometimes, such exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a Bill of Entry also is an assessment order. Hence, the Commissioner (Appeals) has held that the said assessment order should have been challenged under Section 128. She submits that an order of assessment made by one officer cannot be reviewed by another officer in the same rank. In the process of sanctioning refund claim such anomaly would come into play. She also points out that the lower authorities have not examined the merits of the claim. The original authority has recorded that it was premature go into other aspects of the claim. 6. I have considered submissions of both sides. I find that this is a case where there was no lis between the two parties at the time of assessment of the Bill of Entry or at the time of clearance of the goods from the warehouse because it appears that the fact that a notification was issued on the date of clearance was not known to either side. Therefore, it cannot be said that the assessment finalized a dispute which was existing between the two parties. 7. I have considered the decision of the Apex Court in the case Escorts Limited Vs. UOI. The said decision was on the question as to from which date the time limit laid down in section 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Hon. Apex Court in the case of Priya Blue Industries Ltd (Supra) which decision was given following the decision in the case of Flock (India) Pvt. Ltd (supra). It is seen that the duty in that case was paid under protest which implies that there was a dispute between the department and the importer initially. In the facts of the present case there was no dispute between the appellant and the Department at the time of import but an assessment was done based apparently on wrong figures which both sides did not notice. By processing the refund claim there is no review of an adjudication done earlier because no dispute was adjudicated by the assessment order. The fact that the appellant could have challenged the assessment under section 128 of the Customs Act cannot be a reason to deny processing of a refund claim if filed within the four corners of the provisions under section 27 of Customs Act. 10. The Hon ble Delhi High Court has analyzed the judgment of the Hon. Apex Court in the case of Priya Blue Industries (supra) and held that it related to payment of duty under protest will apply only if there was a dispute between the two parties at the time of import where there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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