TMI Blog2017 (4) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... he case that without challenging the assessment order, the claim for refund cannot be considered - impugned order rejected - appeal dismissed - decided against assessee. - Customs Appeal No. 90 of 2009 - Final Order No. A/10682/2017 - Dated:- 31-3-2017 - Dr. D. M. Misra, Member (Judicial) Shri Anand Nainawati, Advocate for the Appellants Shri L. Patra, A.R. for the Respondent-Revenue ORDER Per Dr. D. M. Misra This is an appeal filed against the Order-in-Appeal No. 53/2009/Cus/Commr(A)/KDL dated 27.2.2009 passed by the Commissioner of Customs (Appeals), Kandla. 2. Briefly stated the facts of the case are that the appellant had filed an application for refund of export duty of ₹ 9,99,754/- claiming that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Ld. Advocate further submitted that the issue is squarely covered by the decision of the Hon ble High Court of Gujarat in the case of Joshi Technologies International, INC-India projects vs. UOI and 1 2016 TIOL 1240 HC AHM CX, whereunder in similar facts and circumstances, Education cess and Secondary Higher Education cess paid erroneously during the period 2004 to 2014 has been directed to be refunded. It is his contention that when the cess was collected without authority of law the same ought to be refunded irrespective of the fact whether they challenge the Order of assessment or otherwise. The Chartered Accountant s certificate has been erroneously rejected with out any contrary evidence produced by the Revenue. 4. Per contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no cess is applicable for export of tobacco products. The refund was rejected by the Revenue on the ground that the appellant had filed refund claim in April 2007 against the assessed shipping bills, for goods exported between April 2005 to February 2006, without challenging the assessment of the relevant shipping bills and also the refund is time barred. The ld. Advocate vehemently argued that in order to claim refund of the cess paid by mistake on the export of tobacco and tobacco products, filing of appeal against the assessed shipping bills is not necessary, in view of judgment of the Hon ble High Court in the case of Joshi Technologies International (INC) (supra). Revenue on the other hand heavily relied upon the judgment of Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrect, a party could file a claim for refund and the correctness of the Assessment Order can be examined whilst considering the claim for refund. It was submitted that the wording of Section 27, particularly, the provisions regarding filing of a claim for refund within the period of 1 year or 6 months also showed that a claim for refund could be made even though no Appeal had been filed against the Assessment Order. It was submitted that if a claim for refund could only be made after an Appeal was filed by the party, then the provisions regarding filing of a claim within 1 year or 6 months would become redundant as the Appeal proceedings would never be over within that period. It was submitted that in the claim for refund the party could ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Order of Assessment having been modified in Appeal or reviewed a claim for refund can be maintained. 8. I find that in the present case also, the appellant had paid the cess on export of the tobacco products against assessed shipping bills which they did not challenge before the appropriate authority by resorting to appellate procedure, therefore, the facts and circumstances involved in both the cases are identical. A similar view has also been expressed by this Tribunal in Indian Potash Ltd. vs. C.C., Kandla 2016 (339) ELT 140 (Tri-Ahmd.). Further, I find force in the contention of the ld. A.R. for Revenue that the judgment of Hon ble Gujrat High Court in the case of Joshi Technologies International s case(supra) is not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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