9911796707
TMI Blog2017 (1) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... m China. The imported goods were assessed under CTH 85176292 as free rate of duty. However, neither the respondent had claimed, nor the assessing authority had extended the benefit of 'nil' rate of Excise Duty/CVD provided under the Notification No. 6/2006-CE dated 01.03.2006, as amended and also the benefit of exemption of Additional Duty of Customs of 4% provided under the Notification No. 20/2006-Cus., dated 01.03.2006. Thus, the respondent had paid the excess assessed duty of Rs. 6,06,887/- and cleared the imported consignment. Subsequent to payment of duty, the respondent vide its letter dated 18.05.2011 had requested the assessing authority for reassessment of the Bill of Entry and for refund of the excess duty paid by it. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to verification of unjust enrichment and other aspects provided under the statute. 2.3 Being aggrieved with the impugned order dated 11.10.2011 passed by the ld. Commissioner (Appeals), revenue has filed this present appeal before the Tribunal inter alia, on the following grounds:- (a) that the appeal filed by the respondent against the assessment order dated 31.12.2010 before the Commissioner (Appeals) is barred by limitation of time, being filed beyond the stipulated time provided in Section 128 of the Customs Act, 1962; (b) on the basis of assessed Bill of Entry, since the duty was paid by the respondent, there is no question of filing any refund application as held by the Hon'ble Supreme Court, in the case of Priya Blue Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame was not considered at the time of assessment. Decision taken by the Department for non-consideration of the refund application filed after finalization of assessment and return of the same under the cover of letter dated 24.08.2011, assigning the reason of premature and not maintainable, in our considered opinion, would give rise to the cause of action for filing appeal before the ld. Commissioner (Appeals). Since, the decision of the adjudicating authority has been conveyed in the letter dated 24.08.2011, it can be concluded that the said letter is only detriment to the interest of the Respondent, against which the appeal was preferred before the Commissioner (Appeals). Appeal against the said letter having been filed within a period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts of the present case inasmuch as the duty in such case was paid by the importer in pursuance of an assessment order and the Hon'ble Supreme Court have ruled that so long as the order of assessment stands, the duty would be payable as per that order of assessment and refund claim is not an appeal proceeding. Contrary is the case in hand, wherein the respondent was not aggrieved by the order of assessment inasmuch as on the basis of information furnished by it in the Bill of Entry, the same was assessed by the Customs Department. Thus, there was no scope on the part of the respondent to file any appeal before the Commissioner (Appeals) against the assessed Bill of Entry. Further, the alternative provided in Section 27 ibid i.e. borne b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Customs (Preventive), 2004 (172) 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 passing his order. These judgments will therefore not apply when there is no assessment order on dispute/contest, like as is in the facts of the present case. 6. We, therefore, answer the question framed by hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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