TMI Blog2015 (11) TMI 1400X X X X Extracts X X X X X X X X Extracts X X X X ..... to the facts of the present case. The same relate to a situation where there was a lis between the assessee and the Revenue and that lis stands finally adjudicated in the adjudication order. When the order of assessment itself says that the same is open to reassessment, the assessee can admittedly file the refund claim by praying for reassessment of the order, which the Assistant Commissioner has himself allowed. The non-challenge to such an order, before filing the refund claim, would not act as rebuttal to the assessee’s claim. - no justifiable reason to interfere in the impugned order of Commissioner (Appeals). - issue of inclusion of export duty in the assessable value of the final product to be exported is not in dispute and also stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.2008, clarified that valuation for calculating export duty is to be done by adopting FOB as cum-duty price. Based upon the same, the respondent filed refund of excess paid export duty of ₹ 39,16,281/-. The said refund claim of the respondent was rejected by the original adjudicating authority on the sole ground that the assessee has not challenged the assessment order and as such in terms of the law declared by the Honble Supreme Court, refund cannot be entertained. 4. On an appeal, against the above order, Commissioner (Appeals) took note of the fact that the order of Assistant Commissioner was not a final order inasmuch as he has observed that the order of Assessment of duty is subject to reassessment under Section 17(4) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of Shipping Bill No. 42/2008-09 dated 11.7.2008. It is also ordered the order of assessment of duty is subject to reassessment under Section 17(4) of the Customs Act, 1962 in case there is any change in the Fe content and moisture content resulting in realization higher amount at FOB/assessable value without prejudice any other action that may be taken under provisions of law. The amount of ₹ 4,12,95,178/- already paid by the Exporter vide TR 6 challan no. 11/08-09 dated 11-07-2008 is appropriated towards the above duty liability. ? 8. As is seen from above, The Assistant Commissioner has observed that the order of assessment would be subject to reassessment in terms of Section 17 (4) of the Customs Act, in case there is any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we agree with the order of the Commissioner (Appeals) that inasmuch as the assessment order was a conditional order and was not a final assessment order, the assessee would be entitled to the claim of refund of the excess duty paid in terms of the said order without challenging the conditional order. Appellant s reliance on the Tribunal s order passed in the case of CCE Guntur Vs Muneer Enterprises Ors (Final Order No. 1071-1075/2010) dated 15.07.2010 is appropriate. The facts involved in the said decision are identical to the facts of the present case. By taking note of various precedent decisions, the bench held in favour of the assessee. The said decision of the Tribunal stands confirmed by the Hon ble Supreme Court of India when the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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