TMI Blog2017 (11) TMI 1581X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 - Dated:- 12-9-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Madhu Mohan Damodhar, Member (Technical) Shri Ajay Kumar, (AR) for the appellant. Shri Joseph Dominic, Consultant for the Respondent. ORDER [Order per: M.V. Ravindran] This appeal is filed by the Revenue against Order-in Appeal No.47/2015-VCH dated 22.01.2016. 2. Heard both sides and perused the records. 3. The relevant facts that arises for consideration are as under: 3.1 Five Bills of Entry were selected by the EDI system under RMS and one Bill of Entry was assessed under CTH 25210090 with duty @5% BCD (CN 12/2012-SI. No.108) + Nil rate of Addl. Duty of Customs + 3% (Education Cess) + 4% Spl. Addl. Customs Duty (CN 019/2006). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Central Excise Vs. Flock (India) Private Ltd., reported in 2000 (6) SCC 650. 3.4 Later on the appellant has filed appeal No.148/2013-VCH aggrieved by the impugned Order-in-Original No.68/2013, dated 05.06.2013 for set aside refund of ₹ 36,59,868/- paid in excess. After going through the rival contentions and the various submissions made by the appellant ordered for remand with directions of 1) Bills of Entry in the instant case are appealable order - without filing any appeal against them, same cannot be challenged by filing a refund claim under Section 27 of Customs Act, 1962 2) The appellant is eligible for refund by extending the benefit of preferential rate of duty in terms of Notification No.46/2011-Customs, dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riya Blue Industries Ltd., are inapplicable, relied upon the decision of the Hon'ble High Court of Delhi in the case of Aman Medical Products Ltd., [2010 (250) ELT 30 (Del.)] and set aside the impugned order. 5. Revenue's contention in the appeal is the first appellate authority has erred in relying upon the decision of Hon'ble High Court of Delhi in the case of Aman Medical Products Ltd., (supra). It is the submission that the judgment of the Apex Court in the case of Priya Blue Industries Ltd. , is directly on the point and the case of BPL Telecom Ltd., [2015 (325) E.L.T 467 (S.C.)] held the same view. 6. Ld. Consultant submits that judgment of Micromax Informa Tics Ltd., [2016 (335) ELT 446 (Del.)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it had paid 6% CVD A reference was made to Serial No.263A of Notification No.12/2012-C.E., dated 17 th March, 2012, as amended by Notification No.4/2014 and further amended by Notification No.12/2015-C.E., dated 1st March, 2015, applicable to mobile phones which provided for an effective rate of duty of 1% CVD for mobile phones provided that no Central Value Added Tax ('CENVAT') credit on input or capital goods have been availed. A reference was made to the decision of the Supreme Court in M/s. SRF Industries v. Commissioner of Customs, Chennai - 2015 (318) ELT 607 (S.C.) where the Supreme Court had held that for quantification of CVD in case of an article that has been imported it has to be presumed that the said imported art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a case like the present where the assessee pays the duty in ignorance of a notification which allows him payment of concessional rate of duty merely after filing a Bill of Entry. In fact, such a case is the present case in which there is no assessment order for being challenged in the appeal which is passed under Section 27(l)(i) of the Act because there is no contest or lis and hence no adversarial assessment order. 10. The Court in Aman Medical Products Limited (supra) also took note of and held that the decisions in Collector of Central Excise v. Flock (India) (P.) Ltd. (supra) and Priya Blue Industries Ltd. v. Commissioner of Customs (Prevention) (supra) would not apply since those were cases where there is no assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment order has been reviewed or modified 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 8 th April, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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