TMI Blog2016 (12) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... lant-Department. - Appeal No. C/606/2008 - - - Dated:- 28-10-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) Sh. Arun Kumar, AR for the Appellant None for the Respondent ORDER [ Order per Sulekha Beevi, C.S. ] 1. The above appeal is filed by department challenging the order passed by Commissioner (Appeals) who remanded the matter to the original authority. 2. The respondents, M/s Indian Potash Ltd imported NPK water soluble fertilizers. They paid Additional Customs Duty @16 % at the time of clearance by mistake. As these goods were exempted from whole of duty by Notification No. 4/2006 CE, the respondents preferred refund claim. The same was returned by the Assistant Commissioner observing that the refund cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd remand the matter to the original authority to initiate the process of reassessment, re-examine the refund as per law and pass suitable orders in the matter. 4. The department has filed the present appeal raising the contention that the respondent cannot file refund claim without challenging the assessment. The issue is no longer res integra. In Micromax Information Limited Vs UOI 2016 (3350 ELT 446 (Del) the Hon ble High Court observed as under: 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, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment, the clearance of the goods upon filing of the B/E and payment of duty is not per se an assessment order in the context of Section 27(1)(i) as it stood prior to 8th April, 2011, particularly if such duty has not been paid under protest. In any event, after 8th April, 2011, as noticed hereinbefore, as long as 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. 14. The Assistant Commissioner (Refund), in the present case, appears to have not noticed the decision of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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