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2016 (9) TMI 416 - CESTAT NEW DELHI

2016 (9) TMI 416 - CESTAT NEW DELHI - TMI - Refund claim - Import of 8 consignments of ferrite magnets - importer did not claim the benefit of Notification No. 12/2012 in the Bill of Entry so filed by them which came to be finally assessed by the proper officer of the Customs, without considering the applicability or otherwise of the said notification - whether in such facts and circumstances, the non-challenge to the Bill of Entry would be considered as a bar for claiming refund - Held that:- s .....

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2 of 2016 - Final Order No. 52968 /2016 - Dated:- 3-8-2016 - Ms. Archana Wadhwa, Member (Judicial) And Hon'ble Mr. R K Singh, Member (Technical) Shri S.K Sheoram, AR for the Appellants Shri Niranjan, Advocate for the Respondent ORDER Per Archana Wadhwa ( for the Bench ) Being aggrieved with the order passed by Commissioner (Appeals), Revenue has challenged the said order. 2. After hearing both sides duly represented by Shri S K Sheoram, learned AR appearing for the Revenue and Shri Niranjan, .....

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ication which unconditionally exempts all items covered under list 21 from whole of duty of customs and accordingly, filed a refund claim of ₹ 6,76,165/-. 4. The said refund claim was rejected by Deputy Commissioner on the sole ground that the assessed Bill of Entries have not been put to challenge by the assessee before the higher appellate forum and as such, as per the law declared by the Hon ble Supreme Court in the case of Flock (India) Pvt Ltd. [2000 (120) ELT 285 (SC)] , refund canno .....

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ply only in those cases where there was a lis between the importer and the Revenue. As such, by following the said decision of the Hon ble Delhi High Court as also the Tribunal s decision in the case of Akzo Nobel Coating India Pvt. Ltd. vs. CC (Sea) Chennai [2014 (312) ELT 91 (Tri-Chennai)], he allowed the appeal. 5. Hence the present appeal by the Revenue. 6. After hearing both sides, we find that facts are not in dispute. Admittedly, the importer did not claim the benefit of notification NO. .....

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, rejected the refund claim on the sole ground that the assessment order was not put to challenge. We find that the scenario in the present appeal is identifiable to the facts of Aman Medical Products judgment. 7. When the said order in original of the Deputy Commissioner was put to challenge before Commissioner (Appeals), the appellate authority observed that denial of refund claim on the sole ground of not having challenged the assessed Bill of Entry, is not proper inasmuch as there was no lis .....

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arely relied upon the Board s Circular No. 24/2004-Cus dated 18.3.2004 wherein on the basis of recent Supreme Court s judgment it was affirmed that a refund claim was not maintainable when the assessee has not challenged the assessment order which became final. It may well be appreciated that in the age of self assessment, the onus to file correct classification as well as invoking proper notification to avail due benefit on the importer themselves. 1.2 Further, Hon ble Supreme Court has upheld .....

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y was paid is not challenged and has become final, a refund claim is not maintainable. Supreme Court in this case has clearly propounded that once an order of assessment is passed the duty would be payable as per that order unless the order of assessment has been reviewed under section 28 and /or modified in an appeal that Order Stands. So long as the order of assessment stands the duty would be payable as per that order of assessment. A refund claim is not an appeal proceeding. It further obser .....

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