TMI Blog2014 (1) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... claim if filed within the four corners of the provisions under section 27 of Customs Act - that if appellant is able to prove by producing proper documents that there was a mistake at the time of initial assessment and other conditions of section 27 are satisfied, the appellant will be eligible for refund. The matter is remitted to the adjudicating authority for deciding the refund claim on merit considering the directions - Decided in favour of assessee. - Appeal No.C/30/2005 - FINAL ORDER No.40647/2013 - Dated:- 2-12-2013 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant : Dr. S. Krishnanandh, Advocate For the Respondent : Shri M. Rammohan Rao, DC (AR) JUDGEMENT Per Mathew John; 1. The appellant filed Entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion regarding personal hearing before the adjudicating authority and that was the reason that they could not produce documents as desired by the adjudicating authority. Further they produced before the Commissioner (Appeal) a few documents that could be of relevance in deciding the issue. However the Commissioner (Appeals) relied on the decision of the Hon. Apex Court in the case of Priya Blue Industries Ltd. Vs CC (Preventive) - 2004 (172) ELT 145 (SC) and rejected the appeal. Aggrieved by the order of Commissioner (Appeals), the appellant has filed this appeal before the Tribunal. 3. Ld. advocate submits that this is a case of simple error in transcribing unit prices and the price for the quantity cleared and that they are in possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on Bills of Entry is an appealable order as in the following decisions: (i) Khemka Travels v. Collector of Customs, 1992 (57) E.L.T. 458 (ii) Commissioner of Customs v. Hari Co., 1997 (92) E.L.T. 518 He points out that this aspect was not pointed out to the High Court in the case of Aman Medicals (supra). 7. Further he argues that in the present case a refund at this stage would amount to review of the assessment made earlier made by an assessing officer by another officer of the same rank which is not proper course of action and decision of Hon. Apex Court in Priya Blue Industries is applicable to the facts of the case. Ld. AR submits a refund claim cannot be a substitute for appeal against an erroneous assessment order. 8. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 that the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. 8. We have also considered the decision of the Hon. Apex Court in the case of Priya Blue Industries Ltd (Supra) which decision was given following the decision in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) of sub-section (1) of Section 27 are clearly in the alternative as the expression or is found in between clauses (i) and (ii). The object of Section 27(i)(ii) is to cover those classes of case where the duty is paid by a person without an order of assessment, i.e. in a case like the present where the assessee pays the duty in ignorance of a notification which allows him payment of concessional rate of duty merely after filing a Bill of Entry. In fact, such a case is the present case in which there is no assessment order for being challenged in the appeal which is passed under Section 27(1)(i) of the Act because there is no contest or lis and hence no adversarial assessment order. 5. The Tribunal has referred to the cases of CCE, Kanp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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