9911796707
TMI Blog2017 (11) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No. 12/2015 and paid excess duty, they filed a letter dated 06.07.2015 for grant of excess amount paid as refund which was summarily disposed of by the Asst. Commissioner of Customs stating that the bills of entry has been finally assessed, hence the same cannot be considered. On an appeal, the first appellate authority has recorded that assessent of the imports which were made during the period July October 2014, has attained finality and as the appellant has not challenged the same as per the provisions of Customs Act, 1962, the dismissal/rejection of the refund claim of the appellant seems to be in order. 3. Ld. Counsel submits that the issue is now settled by Hon'ble High Court of Delhi in the case of Micromax Informatics Ltd V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the appellant was right in seeking refund of the amount paid in excess by them as bills of entry under EDI system. 6. Undoubtedly, appellant had filed bills of entry on EDI and did not claim the benefit of refund, subsequently claims by way of refund to the lower authorities. I find that both the lower authorities have not considered the law as settled by Hon'ble High Court of Delhi in the case of Micromax Informatics Ltd; Hon'ble High Court in that case has dealt with similar issue which is present in the case in hand. I would with respect reproduce the relevant paras: "5. In the impugned order while rejecting the refund claim, the Assistant Commissioner (Refund) observed that the claimant has filed the refund of duty on the bills o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order had been passed. 8. In Aman Medical Products Limited v. Commissioner of Customs, Delhi (supra), a Division Bench of this Court was considering an instance of an importer having filed B/Es, paid customs duty and thereafter claimed refund under Section 27 of the Act. The question of law framed by the Court in the appeal filed by the assessee against an order of refusal of refund read as under : Whether non-filing of appeal against the assessed Bill of Entry in which there was no lis between the importer and the Revenue at the time of payment of duty will deprive the importer of his right to file refund claim under Section 27 of the Customs Act, 1962 9. The above question was answered in the negative. Analysing Section 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that with effect from 8th April, 2011, the structure of Section 27 of the Act has undergone a change. The relevant portions of Section 27, as amended with effect from that date, read as under : 27. Claim for refund of duty. - (1) Any person claiming refund of any duty or interest, - (i) paid by him; or (ii) borne by him, may make an application in such form and manner as may be prescribed for such refund of to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest : Provided that where an application for refund has been made before the date on which the Finance Bill, 2011 receives the assent of the President, such application shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and interest, if any, paid on such duty, on imports made by an individual for his personal use; (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty, to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75; (f) the duty and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal such further order will obviously be taken into account. In other words, under Section 27 of the Act, as it now stands, it is not open to an authority to refuse to consider the application for refund only because no appeal has been filed against the assessment order, if there is one. 13. As far as the present case is concerned, there was indeed no assessment order as such passed by the customs authorities. Although under Section 2(ii) of the Act, the word assessment includes a self-assessment, the clearance of the goods upon filing of the B/E and payment of duty is not per se an assessment order in the context of Section 27(1)(i) as it stood prior to 8th April, 2011, particularly if such duty has not been paid under protest. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
