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2016 (3) TMI 431

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..... customs duty or interest has been paid or borne by a person, a claim for refund made by such person under Section 27(1) of the Act as it now stands, will have to be entertained and an order passed thereon by the authority concerned even where an order of assessment may not have reviewed or modified in appeal. Therefore, the order rejecting the refund claim of the Petitioner on the ground of maintainability was, for the aforementioned reasons, plainly erroneous. - Decided in favour of petitioner - W.P.(C) 523/2016, W.P.(C) 524/2016, W.P.(C) 529/2016 - - - Dated:- 26-2-2016 - S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioner : Mr. Tarun Gulati with Mr. Shashi Mathews, Mr. Sparsh Bhargava, Mr. Ankit Sachdeva, Ms. Rachna Yadav, Mr. Neil Hildreth, Advocates For the Respondent : Mr. Kirtiman Singh, CGSC for UOI with Mr. Srikant Misra, Mr. Waize Ali Noor and Mr. Gyanesh Bhardwaj, Advocates, Mr. Satish Kumar, Senior Standing Counsel for Customs ORDER Dr. S. Muralidhar, J. 1. These three writ petitions by Micromax Informatics Limited ( MIL ) challenge three orders dated 21st December 2015 passed by the Assistant Commissioner (Refund) in the office of the Commis .....

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..... ion of this Court in Aman Medical Products Limited v. Commissioner of Customs, Delhi 2010 (250) ELT 30 (Del) in which it was held that in the case of a self-assessment, a refund application could be maintained under Section 27 of the Act, as it stood prior to 8th April 2011, without having to file an appeal since there was in fact no assessment order in the first place. 5. In the impugned order while rejecting the refund claim, the Assistant Commissioner (Refund) observed that the claimant has filed the refund of duty on the bills of entry, which are already assessed . According to the Assistant Commissioner, once the assessment order was passed, duty was payable in terms thereof and unless such assessment order was reviewed under Section 28 of the Act or modified in an appeal. Relying on the decisions of the Supreme Court in Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) 2004 (172) ELT 145 (SC) and Collector of Central Excise v. Flock (India) (P.) Ltd. 2000 (120) ELT 285 (SC) it was held that a refund claim contrary to the assessment order was not maintainable unless the assessment order was reviewed or modified in appeal. 6. This Court has heard the sub .....

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..... (i) of the Act because there is no contest or lis and hence no adversarial assessment order. 10. The Court in Aman Medical Products Limited (supra) also took note of and held that the decisions in Collector of Central Excise v. Flock (India) (P.) Ltd. (supra) and Priya Blue Industries Ltd. v. Commissioner of Customs (Prevention) (supra) would not apply since those were cases where there is no assessment order on dispute/contest, like as is in the present case. It was held in Aman Medical Products Limited (supra) that the Assessee in was entitled to maintain the refund claim notwithstanding that there was no appeal filed against the assessed B/Es. 11. It is significant that with effect from 8th April 2011, the structure of Section 27 of the Act has undergone a change. The relevant portions of Section 27, as amended with effect from that date, read as under: 27. Claim for refund of duty.- (1) Any person claiming refund of any duty or interest,- (i) paid by him; or (ii) borne by him, may make an application in such form and manner as may be prescribed for such refund of to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry .....

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..... ernment may, by notification in the Official Gazette, specify: Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of [duty and interest, if any, paid on such duty] has not been passed on by the persons concerned to any other person. 12. An important change that has been made is that a person can now claim refund of any duty or interest as long as such duty or interest was paid or borne by such person. The conditionality of such payment having been made pursuant to an order of assessment does not exist. Secondly, once an application is made under Section 27(1) of the Act, it is incumbent on the authority concerned to make an order under Section 27 (2) determining if any duty or interest as claimed is refundable to the applicant. The proviso to Section 27(2) of the Act sets out the instances where refund should be paid to the claimant instead of being credited to the Consumer Welfare Fund. The only relevance as far as payment of duty under protest is concerned is indicated in the second proviso to sub-section (1) of Section 27 of the Act which states that the limitation of on .....

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