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TMI Blog2015 (3) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... mption. The said machine was imported by the appellants from Germany. The appellants had shown the value of the invoice in the Bill of Entry as Euro 103,835/- which was enhanced to Euro 115,185/- by the Deputy Commissioner of Customs by disallowing the deduction of the discount that was given to the appellants by the German seller. Aggrieved by the Order of the Deputy Commissioner dated 09.04.2001, the appellants filed an appeal before the Commissioner (Appeals), who vide Order-in-Appeal dated 10.05.2002, upheld the Order of the Deputy Commissioner and rejected the appeal. The Commissioner (Appeals) noted that the appellants did not supply/produce manufacturer s price list indicating that the said discount was available to all the independe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by CRC-I on 05.05.2009. Re-assessment of the Bill of Entry has been done by the group on 30.10.2009 after the CESTAT Order despatched on & around 23.10.2008. Therefore the claim filed is not hit by the limitation of time. 5. Being aggrieved, the Revenue filed appeal before the Commissioner (Appeals) on the ground that the appellant had filed refund claim on 05.05.2009 which is beyond the stipulated time limit of six months from the date of CESTAT order and hence refund was filed beyond limitation in terms of 4th proviso to sub-section (1) of Section 27 of the Customs Act, 1962. 6. The importer contested the appeal of the Revenue, reiterating that the duty had been paid and the matter had been adjudicated in pursuance to the Bill of En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment. Further he states that the Commissioner (Appeals) erred and observed that when payment is treated as payment under protest and protest ceases to exist once the appeal is allowed in favour of the appellant. It is further argued by the appellant that in view of the provisions of Section 27 (1B) (c), the Commissioner (Appeals) have erred in holding that limitation is not counted from re-assessment. The appellant further relies on the Ruling of Sanjivani Non-Ferrous Trading Pvt. Ltd. Vs. CC & CE, Ghaziabad 2012 (284) ELT 559 (Tri.-Del.) wherein it has been held that if assessment order is under challenge, assessee cannot claim refund. In that view, without reassessment, assessee could not claim refund and claim was filed within one mon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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