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2016 (1) TMI 148 - CESTAT MUMBAI

2016 (1) TMI 148 - CESTAT MUMBAI - 2016 (335) E.L.T. 791 (Tri. - Mumbai) - Claim of refund of CVD equivalent to cess paid on Import of natural rubber - Period of limitation - Held that:- The bill of entry presented by the appellant was signed, signifying approval by the assessing officer. That itself is an order of assessment in such a situation. We are, therefore, not prepared to agree that there is no order of assessment in this case, and therefore, the limitation prescribed in Section 27 is e .....

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r 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 of the Ld. Counsel that in terms of the Delhi High Court judgment in case of Aman Medic .....

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r refund is not maintainable without challenging to the assessment order as held by the Apex Court in the case of Priya Blue Industries Ltd. vs. CC [2004(172) ELT 145 (S.C.)]. He also relied upon Hon'ble Supreme Court Judgment in the case of Escort Ltd. vs. UOI [1998 (97) ELT 211 (SC)] which held that the order of assessment on the Bill of Entry is itself an order of assessment and therefore the limitation period will apply from the date on which duty was paid. He also relied on Board Circul .....

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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 he .....

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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 dispute/contest, like as is in the facts of the present case." We are able to appreciate the Hon'ble High Court judgment in the face of the Hon'ble Supreme Court judgment in case of Escorts Ltd. ( .....

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