TMI Blog2017 (7) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... s but directly filed refund claim on 04.12.2008. It is settled principle of law that assessed bills of entry/shipping bills could be challenged before the appellate authority; in the event, the assessee was aggrieved by the assessment of ductile iron spun pipes recorded in the said shipping bills; they could have challenged it. In my opinion, the classification of the goods or applicability of export duty to a particular kind of pipes cannot be settled by filing refund claim. Thus, even if the Department assessed the shipping bills, for the ductile iron spun pipes, attracting Notification No.66/2008-Cus, the right course of remedy would have to file appeal against the assessed copy of shipping bills immediately after receipt of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.2008. Before export, vide their letter dated 21.5.2008, the appellant specifically claimed that the goods for export namely, ductile iron spun pipes under Chapter Heading 7303 are tubes, pipes and hollow profiles, of cast iron, which is other than tubes, pipes and hollow profiles, of iron or steel classifiable under sub-headings 7304, 7305, 7306, hence no export duty is payable. Also, in the said letter, the appellant had mentioned that to avoid delay of export they sought to discharge duty under protest. Another letter was addressed by them on 10.6.2008 reiterating the same stand. The ld. Advocate for the appellant further submitted that while addressing their letter dated 10.11.2008 advancing request for refund of export duty of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the goods were exported on payment of duty under protest. Subsequent amending Notification No.77/2008-Cus dated 13.6.08 cannot be held to be retrospective in nature as it was an amending Notification by substituting Nil rate of duty for the said goods with effect from 13.6.2008. He further submitted that the appellant had paid duty under protest even though disputed applicability of export duty to the said product which they claimed as ductile iron spun pipesof cast iron and classified under Chapter 7303. It is his contention that the appellant had disputed levy of export duty on their product, therefore, non-filing of appeal against the assessed shipping bills on the basis of which Let Export Order (LEO) was issued for export of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant had exported Ductile iron spun pipes and before export, their initial claim was that since the said product, attracts classification under Chapter Heading 73.03, therefore, the said pipes cannot fall under Notification No. 66/08-Cus, dated 10.5.2008. It was their contention that only pipes classifiable under 7304, 7305, 7306 would be subjected to export duty mentioned under said Notification No.66/2008-Cus. However, to expedite their export, duty was paid under protest on the shipping bills assessed, and Let Export Order (LEO) issued on payment of export duty @ 10% of the value of the goods. Later, by amending Notification 77/2008-Cus, the rate of duty was substituted as Nil with effect from 13.6.2008. Therefore, it is incorrect to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o had borne the duty. It has been strenuously submitted that the words in pursuance of an Order of Assessment necessarily imply that a claim for refund can be made without challenging the Assessment in an Appeal. It is submitted that if the assessment is not correct, 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 afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in pursuance of an Order of Assessment only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in Appeal or reviewed a claim for refund can be maintained. 7. The aforesaid ratio of the Hon ble Supreme Court has been followed in a series of cases including the case of Sopariwala Exports Vs. C.C., Kandla - 2017-TIOL-2132-CESTAT-AHM. In these circumstances, I do not find merit in the appeal filed. Consequently, the impugned order is upheld and the appeal is dismissed. (Pronounced in the open Court on 28.7.2017) - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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