TMI Blog2015 (12) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court judgements in the case of Flock (India) Pvt. Ltd. (2000 (8) TMI 88 - SUPREME COURT OF INDIA) and Priya Blue Industries (2004 (9) TMI 105 - SUPREME COURT OF INDIA) on the basis of which the appellants refund claims were rejected by lower authorities) is squarely applicable to the facts and circumstances of these appeals. - matter remanded back - decided in favour of assessee. - Appeal N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Ltd. Vs. CC (Preventive) [2004 (172) ELT 145 (SC)], refunds are not maintainable unless an order of assessment is reviewed by a higher appellate authority which had not been done in these cases. 2. The refunds were claimed by the appellants on the ground that the goods were assessed to Basic Custom Duty (BCD) @ 10% ad valorem while the goods were eligible for the benefit of Notification No.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s paid is not necessarily pursuant to an order of assessment but can also be borne by him. Clauses (i) and (ii) of sub-section (1) of Section 27 are clearly in the alternative as the expression or is found in between clauses (i) and (ii). The object of Section 27(i)(ii) is to cover those classes of case where the duty is paid by a person without an order of assessment, i.e. in a case like the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is appealable and the party did not chose to exercise the statutory right of appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that adjudicating authority had committed an error in passing his order. These judgments will therefore not apply when there is no assessment order on dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the facts and circumstances of these appeals. 4. In the light of the foregoing, we allow the appeals by way of remand to the original adjudicating authority for de novo consideration of the appellants refunds in the light and on the basis of the Delhi High Court judgement in the case of Aman Medical Products Ltd. (supra). Needless to say that payment of refund to the appellants will be in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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