TMI Blog2003 (1) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... umption. Afterwards, they filed a refund claim before the lower authority on the ground that assessment done by the department is wrong. The actual applicable CTH will be 8432.80 and applicable rate of duty will be 25% CBD+CV Nil. So, excess duty of ₹ 3,52,815 should be refunded to them. The lower authority admitted the refund and re-assessed the Bill of Entry as claimed by importer and has sanctioned the refund. 2. The Revenue filed an appeal against the above order before the Commissioner (Appeals) merely on the ground that the assessment of Bill of Entry which is quasi-judicial order was not challenged by way of filing the appeal there against. As such direct refund claim should not have been entertained by the authorities below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, Ld. Advocate appearing for the appellants and Shri N.K. Mishra, Ld. JDR. Shri Bagaria, Ld. Advocate submitted that the provisions of Section 27 of the Customs Act, are not perimateria with the provisions of Section 11B of the Central Excise Act and as such the Hon'ble Supreme Court's decision in the case of Flock (India) Pvt. Ltd. is not applicable. Section 27 of the Customs Act, confers the statutory rights to file the refund claim of duty paid in pursuance of an order of assessment thus providing statutorily claim of refund of duty even without challenging the assessment. If the assessment has to be challenged by way of filing a separate appeal, the provisions of Section 27 would become nugatory and meaningless. He has also rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to reject the present Refund Claim on the ground as made out by the lower authorities. We would therefore consider that lodging the claim of refund would amount to filing a request for re-assessment of the Bill of Entry. Since the benefit of Notification would be claimed at any stage this reassessment was required to be done by the proper officer and the refund of the amount against such reassessment was required to be made as per the provisions of Section 27 of the Customs Act, 1962. 6. In the above referred decision, reliance has also been placed upon the C.B.E.C's Customs Manual when the Bench has observed as under: The said position of law has been accepted by the C.B.E.C. in CBEC's Customs Manual of instructions iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant to deny the benefit of the refund if otherwise due under Section 27 of the Customs Act as that decision was rendered by a Division Bench of the Hon'ble Apex Court in the case of refund under the Central Excise Act, it is not found that the provisions of Section 11B of the Central Excise Act and Section 27 are paremateria, The facts in this case were totally different. The later decision issued by a Full Bench of Three Members of the Hon'ble Supreme Court in the case of Karnataka Power Ltd., 2000 (143) ELT 482 would therefore be the correct interpretation of law on refunds under Section 27 of the Customs Act, 1962. 8. Inasmuch as the issue is decided in favour of the appellants by the above Division Bench's decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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