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TMI Blog2017 (4) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... hipping bills during 2005-06 whereas no cess under Agricultural Produce Cess Act, 1985 and Tobacco Cess Act, 1935 was required to be paid on export of the said products. A show cause notice was issued to them on 3rd July, 2007 proposing rejection of the said claim. On adjudication, the refund claim was rejected on various grounds. Aggrieved by the said order, they filed an appeal before the ld. Commissioner (Appeals), who, in turn, rejected their appeal. Hence, the present appeal. 3. Ld. Advocate for the appellant submitted that during the period April 2005 to February 2006, the appellant had paid cess under the Agricultural Produce Cess Act, 1985 on the exported tobacco products. After payment of the said cess, the appellant approached th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the Hon ble Supreme Court in the case of Priya Blue Industries Ltd. vs. C.C.. (Preventive) -2004 (172) ELT 145 (SC), following the decision in the case of Collector of Central Excise vs. Flock (India) Pvt. Ltd. -2000 (120) ELT 285 (SC) has held that without challenging the assessment order, the claim for refund cannot be considered. Further, he has submitted that the appellant could not establish before the authorities below that the amount claimed as refund, its incidence has not been passed on to others, hence , the refund is hit by the principles of unjust enrichment. It is his contention that principles of unjust enrichment ought to be kept in view before ordering any refund of duty in view of series of judgments of the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue Industries case. It is submitted by the Revenue that the judgment in Joshi Technologies s case cannot be made applicable to the facts of the present case, inasmuch as the Hon ble High Court while exercising writ jurisdiction and considering the fact that there was self assessment, observed that the education cess and Higher Secondary Education cess collected from the assesse-petitioner during the period 2004 to 2014 is in violation of Article 265 of the Constitution of India and accordingly, refundable. 7. Before analyzing the arguments advanced by both sides, it is quite necessary to refer to the judgment of the Hon ble Supreme Court in Priya Blue Industries Ltd. s case. In the said case, the assesse imported ship for breaking pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Order of Assessment was not correct and could claim refund on that basis even without filing an Appeal. 6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) s case (supra). Once an Order of Assessment is passed the duty would be payable as per that order. Unless that 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. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the present case in as much as in that case their Lordships had not been confronted with the situation as in the present case, as the assessment in the said case was self assessment, therefore, the ratio laid down in Priya Blue Industries Ltd. s case was not considered. Besides , the said judgment was delivered in exercising writ jurisdiction holding that any amount collected without authority of law and in violation of Article 265 of the Constitution of India is refundable to the person from whom it is collected, accordingly the Education Cess & Higher Secondary Education Cess collected during the period 2004 to 2014 from the petitioner is held to be refundable. 9. In view of the above findings, the other issued raised become academic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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