9911796707
TMI Blog2017 (10) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.10.2006. The said goods were classified under Chapter Heading 7615920 of Customs Tariff, and total duty amounting to Rs. 17,72,941.88 was paid at the time of clearance without claiming any exemption/protest. (ii) Subsequently, the importer preferred a refund of the duty (CVD) already paid pleading his entitlement under Central Excise Notification No.3/2005 dated 24.2.2005 as amended by Notification No.7/2006 dated 1.3.2006. (iii) The Department issued show-cause notice (SCN) proposing rejection of the refund claim of the appellant, which was adjudicated by the Order-in-Original No.21/2007 dated 7.2.2007 rejecting their claim of refund. (iv) The appellant went in appeal before Commissioner (A) who vide the impugned Order-in-Appeal con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer considering the refund claim cannot review an assessment order. (ii) When assessment on Bill of Entry is not challenged, refund is not admissible as supported by Tribunal s decision in the case of Indian Potash Ltd. vs. CC, Kandla: 2016 (339) ELT 140 (Tri.-Ahmed.). 6. After having carefully considered the facts on records and submissions of both the sides, it appears that when amount collected as CVD, which was not due and for which exemption Notification No.10/2006 dated 1.3.2006 was available, it is to be termed as the tax collected without the authority of law. Factually, there is no dispute that the goods imported by the appellant are eligible for the benefit under Notification No.10/2006 dated 1.3.2006. 6.1 The Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year. (b) in any other case, before the expiry of six months, from the date of payment of duty and interest, if any, paid on such duty in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 holding that the refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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