TMI Blog2015 (1) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... er under Section 28 of the Customs Act, 1962. The appellant had not challenged the assessment order and file the refund claim and in the refund claim they challenged the assessment order. We find that the Hon'ble Supreme Court in the case of CCE, Kanpur vs Flock (India) Pvt Ltd (2000 (8) TMI 88 - SUPREME COURT OF INDIA) held that the assessment order cannot be challenged in the refund claim. In the case of Priya Blue (2004 (9) TMI 105 - SUPREME COURT OF INDIA) the Hon'ble Supreme Court followed the decision in the case of Flock (India) Pvt Ltd (supra). The Hon'ble Supreme Court while interpreting the words "in pursuance of an order of assessment" under Section 27 of the Customs Act only indicate that the party/person who can make a claim f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 62/2007-Cus dated 3.5.2007 whereby the concessional rate of duty at ₹ 300 per M.T. in respect of Iron Ore Fines. The adjudicating authority rejected the refund claims and the Commissioner (Appeals) upheld the adjudication orders. 5. The contention of the appellant is that the refund claims were rejected on the ground that the assessment orders in respect of the imported goods were not challenged by the appellant. The contention of the appellant is that as no order under Section 17 (5) of the Customs Act, 1962 is passed by the adjudicating authority in respect of the consignments, therefore the appellants are within its rights to file refund claims and challenge the assessment order. The appellant heavily relies upon the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the benefit of the Notification. 9. We find that the appellant made export of consignments which were declared in the Shipping Bills as ROM i.e. Mixture of Iron Ore Fines and Lumps and the appellant paid duty at Tariff rate. Subsequently after clearance of the goods the appellant filed refund claims. At the first instance the refund claims were not in proper form and appellant subsequently filed after removing the defects in the refund claims. On merits we find that Notification No. 62/2007-Cus provides concessional rate of duty in respect of fines and lumps of Fe content 62% and below. For ready reference the provisions are reproduced below:- In exercise of the powers conferred by sub-section (1) of section 25 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28 of the Customs Act, 1962. The appellant had not challenged the assessment order and file the refund claim and in the refund claim they challenged the assessment order. We find that the Hon'ble Supreme Court in the case of CCE, Kanpur vs Flock (India) Pvt Ltd (supra) held that the assessment order cannot be challenged in the refund claim. The Hon'ble Supreme Court held in paras 7 8 as under: 7. Section 35 of the Act provides regarding appeals to Collector (Appeals). In sub-section (1) thereof it is laid down that any person aggrieved by any decision or order under the Act by a Central Excise officer lower in rank than a Collector of Central Excise may appeal to the Collector (Appeals) within 3 months from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the goods manufactured by an assessee is important for the purpose of levy and collection of excise duty. Under Rule 173B every assessee is required to file with the proper officer a list of goods manufactured by him for approval and the proper officer shall after such inquiry as he deems fit approve the list with such modifications as are considered necessary and all clearances are to be made only thereafter. 12. In the case of Priya Blue (supra) the Hon'ble Supreme Court followed the decision in the case of Flock (India) Pvt Ltd (supra). The Hon'ble Supreme Court while interpreting the words in pursuance of an order of assessment under Section 27 of the Customs Act only indicate that the party/person who can make a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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