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TMI Blog2014 (11) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 14.7.2006, which were provisionally assessed under Provisional Bond and they paid extra duty of Rs. 10,84,535.00 pending recovery to ascertain actual quantity imported. On 24.9.2007, they filed refund claim of Rs. 10,84,535/- against finalization of provisional assessment on nine Bills of Entry. The adjudicating authority rejected the refund claim on the ground that the finalization of amount was done on 5.1.2007 and the appellant filed refund claim on 10.9.2007. Commissioner (Appeals) mainly following the Public Notice No.45/2004 dt. 10.3.2004 observed that the Bills of Entry were audited on 5.4.2007 and the importer had time upto 4.10.2007 for filing the refund claim. Accordingly, the Commissioner (Appeals) set aside the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arising from provisional assessment is governed by the limitation as prescribed under Section 27 of the Customs Act and Customs authorities are under no obligation to refund the amount due under Section 18 (2) of the said Act without the application of Section 27 of the said Act. Ld. A.R. also relies upon the decision of the Hon'ble Gujarat High court in the case of Commissioner of Customs Vs Hindalco Industries Ltd. - 2008 (231) ELT 36 (Guj.). 4. On the other hand, the learned advocate on behalf of the respondent reiterates the finding of the Commissioner (Appeals) and particularly, Public Notice No.45/2004. He relied upon the recent decision of Hon'ble Delhi High Court in the case of Commissioner of Customs Vs Indian Oil Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m in pursuance of an order of assessment; or (ii) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs - (a) in the case of any import made by any individual for his personal use or by government or by any educational, research or charitable institution or hospital, before the expiry of one year; (b) in any other case, before the expiry of six months, from the date of payment of duty and interest, if any, paid on such duty in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of refund claim may be verified by the Refund section please" 8. I agree with the findings of the Commissioner (Appeals) that limitation would start from 5.4.2007 on the basis of file note as reproduced above. The expression "from the date of adjustment of duty after the final assessment thereof" in Explanation II of Section 27(1) of the said Act have vide amplitude. In the case of Indian Oil Corporation Ltd. (supra), the Hon'ble Delhi High Court observed that "Explanation-II" of Section 27 of the Act deals with the 3rd category of situations. Such situation may occur after the passing of the final assessment, on account of rectification under Section 154 of the Act or because of any other reasons, as a result of which the final ..... X X X X Extracts X X X X X X X X Extracts X X X X
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