TMI Blog2018 (5) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 (12) TMI 95 - SUPREME COURT OF INDIA], where it was held that refund cannot be denied on ground of non-challenge to assessment order. Case remanded back to the original authority to consider the refund claim after considering the law declared by the Tribunal and the High Court - appeal allowed by way of remand. - C/23325/2014-SM - Final Order No. 20549/2018 - Dated:- 6-4-2018 - Shri S.S Garg, Judicial Member Shri C. RamKumar, Advocate, Hari Radhakrishnan Advocate- For the Appellant Shri. N. Jagadish, Supritendent(AR)- For the Respondent Order Per :S.S GARG The present appeal is directed against the impugned order dt.16/07/2014 passed by the Commissioner(Appeals) vide which the Commissioner(Appeals) rejected the appeal of the appellant on the ground that the appellant cannot claim the refund directly without challenging the assessment order, in view of the Apex Court decision in the case of Priya Blue Industries ltd. vs. Commissioner [2004(172) ELT 145 (SC)]. 2. Briefly the facts of the case are that the appellants imported Rubber Anti Oxidant Was classified under Tariff heading 27129090 under 51 bills of entry during the period from 2/07/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt decision in the case of Micromax Informatics Ltd. [2017-TlOL-1302-HC-MAD-CUS] and the Delhi Tribunal decision in the case of CC, New Delhi Vs. Kent RO System pvt. Ltd. [2016-TIOL-2370-CESTAT-DEL] are squarely applicable to the present case. He further submitted that when there is no dispute in the assessment, the question of challenging the assessment would not arise in the light of the Aman Medical Products Ltd. decision cited supra wherein the Hon'ble High Court vide para 5 has distinguished the ratio laid down in Priya Blue industries case and Flock (India) Pvt. Ltd. the Hon'ble High Court has observed as follows.- In both cases there was an assessment order which was passed and consequently it was held that where an adjudication authority passed an order which is appealable and the party did not choose 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 the adjudicating authority had committed an error in passing this order. These judgments will therefore not apply when there is no assessment order on dispute or contes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted the refund as the appellant has not challenged the assessment order. He further submitted that both the judgment of the Supreme Court in the case of Priya Blue Industries and Flock (India) Pvt. Ltd. are fully applicable in the facts and circumstances. He further submitted that even the Supreme Court in the case of Mafatlal Industries Ltd. [1997(89) ELT 247 (SC)] in para 7 of the judgment, the Constitution Bench held that unless the order of assessment has been modified or set aside, the assessee is not eligible for refund. He further submitted that the decision of the Delhi High Court in the case of Aman Medical Products has been distinguished by the Division Bench of the Tribunal in the case of CEAT Ltd. vs. CC, Kolkata [2016(335) ELT 693 (Tri. Mum.)] wherein the Tribunal has held that the assessee is not eligible for refund if he does not challenge the assessment order. passed on the Bill of Entry. Learned AR also relied upon the following decisions:- i. CC, Bangalore vs. BPL Telecom Ltd. [2015(325) ELT 467 (SC)] ii. Escorts Ltd. Vs. I-UOI [1998(97) ELT 211 (SC)] iii. CC(Appeals) vs. ACE Designers [2015(329) ELT 109 (Mad.)] iv. CEAT Ltd. [2016(335) ELT 693 (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed the ratio of VST Industries Limited - 2007 (207) E.L.T. 513 (T) = 2007 (5) S.T.R. 59 (T) of the same Tribunal wherein the ratio of the Apex Court's judgment in the cases of Flock (India) Ltd. and Priya Blue have been distinguished. In these circumstances, we are of the considered view that the omission can be corrected under Section 154 of the Customs Act, 1962. Therefore, the appellant is rightly entitled for the refund of the amount, which was collected without extending the benefit of an unconditional exemption notification. For the fault of the assessing officer, if the importer is compelled to pay huge revenue, it would definitely amount to mis-carriage of justice. Hence, we allow the appeal. 8. Further I find that Hon ble High Court of Delhi in the case of Aman Medical Products Ltd. cited supra has also considered the decision of the Apex Court in the case of Priya Blue and Flock (India) Pvt. Ltd. and has held in para 5 as under:- 5. The Tribunal has referred to the cases of CCE, Kanpur v. Flock (India) Pvt. Ltd. [2000 (120) E.L.T. 285] and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive), 2004 (172) E.L.T.145 (S.C.). In both thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Delhi High Court's decision, we find that the Hon'ble High Court has discussed the decisions of the Apex Court in the case of M/S Flock India as well as M/S Priya Blue. The Hon'ble High Court has observed as under: 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 entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1 962 and which claim will fall under clause (ii) of sub-section (l) of Section 27. 6. In the present case, we note that the bill of entry was assessed without the respondent claiming the benefit of the notification. Accordingly, there was no lis at the time of the original bill of entry. Under said circumstances, we are of the view that it will be appropriate to follow the decision of the Hon'ble High Court as has been done by the Commissioner (Appeals). 7. In view of the above, we find no reason to interfere with the impugned order. It is sustained and the Revenue appeal is dismissed. 11. Further I find that the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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(I)(i) as it stood prior to 8th April, 2011, Particularly if such duty has not been paid under Protest In any event, after 8th April, 2011, as noticed hereinbefore, as long as customs duty or interest has been paid or borne by a person, a claim for refund made by such person under Section 27(I) of the Act as it now stands, will have to be entertained and an order passed thereon by the authority concerned even where an order of assessment may not have reviewed or modified in appeal. 14. The Assistant Commissioner (Refund), in the present case, appears to have not noticed the decision of this Court in Aman Medical Products Limited (supra) which was rendered in the context of Section 27 of the Act as it stood prior to 8th April, 2011. Further he failed to notice that the said provision has undergone a significant change with effect from 8th April, 2011. The impugned order of the Assistant Commissioner (Refund) rejecting the refund claim of the petitioner on the ground of maintainability was, for the aforementioned reasons, plainly erroneous. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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