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2016 (7) TMI 483 - CESTAT ALLAHABAD

2016 (7) TMI 483 - CESTAT ALLAHABAD - TMI - Claim of refund of duty paid in excess whereas the goods were entitled for concessional rate of duty - refund was rejected on the ground that appellant is not entitled to grant of refund of the excess duty paid unless he had filed an appeal against the order, by which he had deposited the duty on filling of the Bill of Entry. - Held that:- non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for r .....

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ant. - Cus Appeal No. 701/10 - Final Order No. 70255/2016 - Dated:- 1-6-2016 - Mr. Anil Choudhary, Member (Judicial) and Mr. Anil G. Shakkarwar, Member (Technical) None for the Appellant(s) Shri D. K. Deb, Asstt. Commr. (D. R.), for the Department ORDER The only issue which arises in this appeal, is whether an assessee, who is entitled for concessional rate of duty, pays higher duty by inadvertence, is not entitled to grant of refund of the excess duty paid unless he had filed an appeal against .....

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lling of the said Bill of Entry. The appellant paid duty as applicable on 31.05.2006 amounting to ₹ 3,10,954/- and the goods were released for home consumption accordingly. However, subsequently on realizing that the appellants are entitled to benefit of Notification No 21/2002 Sl. No. 477 (ii) and have paid 12.5% BCD, in instead of 5% as applicable on the goods imported at ICD, Dadri, They applied for refund in the prescribed from on 07.08.2006 claiming refund of ₹ 78,334/- paid as .....

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he Bill of Entry cannot be re-assessed or amended after release of the goods. 3. Being aggrieved, the appellant preferred an appeal before the Id. Commissioner (Appeals), who has pleased to reject the same relying on the rulings of the Hon ble Supreme Court in the cases of Collector of Central excise, Kanpur Vs. Flock (India) Pvt. Ltd. : 2000(120) ELT 285 (SC) & Priya Blue Industries Ltd. Vs. Commr. of Customs (Preventive) : 2004 (172) ELT 145 (S.C) 4. Being aggrieved, the appellant is befor .....

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ich is 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 present where the assessee pays the duty in ignorance of a notification which allows him payment o .....

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2) E.L.T. 145 (S.C.). In both these cases, referred to by the Tribunal there was an assessment order which was passed and consequently it was held that where an adjudicating authority passed an order which 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 .....

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