TMI Blog2016 (1) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... point is rejected. - Decided against the assessee. - Appeal No. C/838/2004-Mum - Final Order No. A/3073/2015-WZB/CB - Dated:- 11-9-2015 - P. S. Pruthi, Member (T) And Ramesh Nair, Member (J) For the Appellant : Shri Narendra Dave, CA For the Respondent : Shri S J Sahu, Assistant Commissioner (AR) ORDER Per P S Pruthi The appellant is in appeal against the rejection of refund claim. 2. The appellant imported natural rubber. CVD equivalent to cess was paid by them in respect of Bill of Entry dated 14.3.2003. However, various judgments including those by the Apex Court held that Cess is not payable on the imported rubber. Therefore appellant filed refund claim against duty already paid by them. 3. It is the plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout review of the assessment, appellant have relied on the case of Aman Medical Products Ltd. (supra). This judgment dealt with refund claim under Section 27 which is reproduced below or convenience. 27. Claim for refund of duty.- (1) Any person claiming refund of any duty- (i) paid by him in pursuance of an order of assessment; or (ii) borne by him, may make an application for refund of such [duty and interest, if any, paid on such duty] to the [Assistant Commissioner of Customs or Deputy Commissioner of Customs]- We find that in the case of Aman Medical Products (supra), it was held that 5. The Tribunal has referred to the cases of CCE, Kanpur Vs. Flock (India) Pvt. Ltd. [2000(120) ELT 285] and Priya Blue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iss the appellant's application. This is also the view taken by this Court in Madras Rubber Factory v. Union of India [1983 (13) E L T 1579 (SC)= 1976 (2) SCC 86] The Hon'ble Supreme Court decision takes precedence over the High Court judgments. In our view the decision of Apex Court in the case of Priya Blues Industries Ltd (supra) puts the issue beyond the doubt. The Supreme Court held that once the order of the assessment is passed and unless that order is reviewed under Section 28 or modified in appeal, that order stands and the officer considering the refund claim cannot stand in appeal over the assessment made by competent officers. We may respectfully observe that clause (iii) under Section 27 reproduced above does not app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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