TMI Blog2015 (2) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... - SUPREME COURT OF INDIA] and Priya Blue Industries case (2004 (9) TMI 105 - SUPREME COURT OF INDIA). However, both these Apex Court judgements have been distinguished in Aman Medical Products Ltd. case [2009 (9) TMI 41 - DELHI HIGH COURT] by Hon'ble High Court of Delhi. - There is no dispute that the duty was paid in excess to what was required to pay. There is no need to challenge the assessment of the Bill of Entry. The refund of excess paid duty is admissible. - appellant is rightly entitled for refund of excess paid CVD. The order of the lower appellate authority is set aside - Following decision of Bennet Coleman & Co. Ltd. [2008 (7) TMI 204 - CESTAT BANGLORE] - Decided in favour of assessee. - Appeal No. C/85922/13 - - - Dated: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CVD is unconditional. Therefore, there is no dispute as regards the applicability of 4% CVD between the appellant and the department. Under this fact, it is not a case where the assessment is required to be challenged in order to claim the refund of excess paid duty. As regards the Revenue's reliance of Flock India and Priya Blue Industries case (cited supra), she placed reliance on the decision of Hon'ble High Court of Delhi in the case of Aman Medical products Ltd. Vs. CC, Delhi - 2010 (250) ELT 30 (Del) wherein both the said Hon'ble Apex Court judgements have been distinguished. The learned Counsel submits that the facts of the aman Medical Prdoucts Ltd. case is absolutely identical to the facts of the present case. She has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is no dispute between the appellant and the Revenue as regards the effective rate of CVD. The lower appellate authority has rejected the claim, applying the ratio of Flock India and Priya Blue Industries case (cited supra). However, both these Apex Court judgements have been distinguished in Aman Medical Products Ltd. case by Hon'ble High Court of Delhi. The relevant operative part of the judgement is reproduced below: If therefore we refer to language of Section 27, it is more than clear that the duty which is paid is not necessarily pursuant to an order of assessment but can also be borne by him?. Clause (i) and (ii) of sub-section (1) of Section 27 are clearly in the alternative as the expression or? is found in between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 and which claim will fall under clause (ii) of sub section (1) of Section 27. 7. We accordingly set aside the impugned order dated 3.4.2008 of the CESTAT and uphold the order of the Commissioner of Customs Appeal dated 28.1.2005 and remand of the matter to the original authority viz Deputy Commissioner of Customs (Refund) to examine the merits of the matter in accordance with law after providing due opportunity to the appellant. 5.2 From the above judgement of the Hon'ble Delhi High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either partial or complete is dependent on certain conditions. For example, in certain cases, the importer is expected to furnish certificates from competent authorities. It should be borne in mind that assessment to Customs Duty is a highly technical job and only an officer, who is fully acquainted with the legal provisions and procedures, can competently complete the assessment without loss of revenue or depriving the importer of any benefit intended by an exemption notification. 7.1. In this case, it is not in dispute that the impugned goods are unconditionally exempt from the Additional Duty (Imports) by virtue of Notification No.20/2006 dated 01.03.2006. The appellants have stated that they had banked upon the expertise of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Priya Blue case and also the Larger Bench decision of Eurotex case to the facts of the present case. In fact, in the case of G. S. Metalica (cited supra), the Tribunal held the view that when the goods are assessed to higher Customs Duty only on account of omission by the assessing officer to take note of the relevant customs notification, the same can be corrected under Section 154 of the Customs Act, 1962 without taking recourse to appellate remedies provided in the Customs Act. While taking this view, the Tribunal has followed the ratio of VST Industries Limited - 2007 (207) ELT 513 (T) of the same Tribunal wherein the ratio of the Apex Court's judgement in the cases of Flock (India) Ltd. and Priya Blue have been distinguished. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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