TMI Blog2018 (7) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 and 3.6.2013 which were filed in self-assessment mode. In respect of Bill of Entry dated 31.5.2013, the assessment group re-assessed some items, modified the classification heading and disallowed the notification benefit claimed by the appellant under Sl. No. 474 (ii) of Notification No. 12/2012-Cus. dated 17.3.2012. Appellant paid up the differential duty, however, preferred refund claims on the ground that the goods are liable to be assessed under Chapter 9018 and not under Chapter 8421. The refund claims were rejected by the original authority inter alia on the grounds that claimant has not challenged the order of assessment against the said Bills of Entry; that the question of refund of excess duty does not therefore arise in view of Supreme Court's decision in Priya Blue Industries, In appeal, Commissioner (Appeals) vide the impugned order dated 4.2.2016 upheld the rejection in respect of Bill of Entry dated 31.5.2013; however, he set aside the rejection of refund claim in respect of bill of Entry dated 3.6.2013 on the ground that assessment was not challenged and directed the original authority to examine the claim in consultation with the assessment group and dispose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms duty paid on the imported goods. 3. On the other hand, ld. AR Shri A. Cletus supported the impugned order and also submitted that the matter may be remanded to the original authority for passing a speaking order which can then be challenged by the appellant. 4. We have heard both sides and gone through the case records. 5.1 Indubitably, pursuant to the amendment to the definition of assessment in Section 2(34) of the Customs Act and to Section 17 with effect from 8.4.2011 and to the changes brought in under section 17 ibid, on the same day, the decision that was delivered by the Hon'ble Apex Court in Priya Blue Industries case can be distinguished in the facts of the present case. We also note that vide the Finance Act, 2011, with effect from 8.4.2011, section 27 was also amended inter alia to bring it with those provisions with the amended provisions concerning self-assessment of Bill of Entry. 5.2 We also note that the facts of the present appeals are very much pari materia with the case laws relied upon by the ld. counsel and will apply on all fours to the facts of the present case. 5.3 In the case of Micromax Informatics Ltd. 2016 (335) ELT 446 (Del.), t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case. It was held in Aman Medical Products Limited (supra) that the assessee was entitled to maintain the refund claim notwithstanding that there was no appeal filed against the assessed B/Es. 11. It is significant 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 be deemed to have been made under sub-section (1), as it stood before the date on which the Finance Bill, 2011 receives the assent of the President and the same shall be dealt with in accordance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or interest as long as such duty or interest was paid or borne by such person. The conditionality of such payment having been made pursuant to an order of assessment does not exist Secondly, once an application is made under Section 27(1) of the Act, it is incumbent on the authority concerned to make an order under Section 27(2) determining if any duty or interest as claimed is refundable to the applicant The proviso to Section 27(2) of the Act sets out the instances where refund should be paid to the claimant instead of being credited to the Consumer Welfare Fund The only relevance as far as payment of duty under protest is concerned is indicated in the second proviso to sub-section (1) of Section 27 of the Act which states that the limitation of one year shall not apply in such event. In other words, whether or not the duty is paid under protest once an application for refund is made in the requisite manner and form as prescribed, it is incumbent on the authority to deal with such an application. Where there is an assessment order, the authority will take it into account in deciding the application for refund If such assessment order has been reviewed or modified in appeal such f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted-I, for the reasons given hereinabove, 23. I may also indicate herein that in the course of arguments, the respondents sought to place reliance on a Division Bench judgement of this Court in Commissioner of Customs V. Ace Designers, (2015) 329 ELT 109 (Mad). As correctly pointed out by the learned counsel for the petitioner, this judgement also dealt with the provisions of Sections 17 and 27 of the Act, which stood on the statute prior to the 2011 amendment 24. The record would, thus, show that the second respondent has not passed any order on merits in respect of the refund applications. The second respondent has, merely, returned the refund applications by wrongly appreciating the ratio of the decision rendered in Priya Blue Industries case. The said decision, as indicated above, was rendered prior to the 2011 amendment made to Sections 17 and 27 of the Act. 36 25. Furthermore, the impugned order, whereby, the applications were returned, albeit, without hearing the affected party did entail civil consequences. 25.1. The defence advanced on behalf of the respondents based on the Regulation 3 of the 1995 Regulations is, to my mind, erroneous. 26 Quite cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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