TMI Blog2018 (12) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... The facts of the case in brief are that the appellants are manufacturer of fertilizer products classifiable under Chapter 31 of the First Schedule to the Central Excise Tariff Act, 1985 and for that imported Rock Phosphates of Jordan origin from an overseas Supplier M/s. Jordan Phosphate Mines Limited, Amman and Jordon on the basis of the memorandum of agreement. They got some rebate on CTR price on account of higher moisture and Silica contained in the imported Rock Phosphate and reduction of freight on account of subsequent changing in freight rate. The appellant filed different claims on reduction of freight in respect of the impugned Bills of Entry, which is mentioned below:- SI No. Appeal No. Bill of Entry No. Date Refund claim amount (in Rs.) 01. C/77033/2018 6335058 11/08/2016 31,298/- 02. -do- 6335063 11/08/2016 54355/- 03. C/77034/2018 8001197 28/12/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant portion of the said decision is reproduced below: 5. On perusal of the case records, we find that the refund application filed by the respondent on 25-5-2011, claiming refund of excess duty paid by it was returned by the Assistant Commissioner (Refund) under the cover of his letter dated 24-8-2011. Thereafter, the respondent had filed the appeal before the Commissioner (Appeals) on 12- 9-2011. Cause of action for filing appeal will not be considered as the date of assessment of the Bill of Entry inasmuch as the benefit of duty exemption provided under the above referred notifications was claimed by the respondent in the refund application, since the same was not considered at the time of assessment. Decision taken by the Department for non-consideration of the refund application filed after finalization of assessment and return of the same under the cover of letter dated 24-8-2011, assigning the reason of premature and not maintainable, in our considered opinion, would give rise to the cause of action for filing appeal before the ld. Commissioner (Appeals). Since, the decision of the adjudicating authority has been conveyed in the letter dated 24-8-2011, it can be conclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry. Further, the alternative provided in Section 27 ibid, i.e., borne by him was not the subject matter of dispute before the Hon ble Supreme Court. Considering the second alternative provided in Section 27 ibid, the Hon ble Delhi High Court in the case of Aman Medical Products Ltd. v. Commissioner of Customs, Delhi reported in 2010 (250) E.L.T. 30 (Del.) have held that duty borne by the person can claim refund under Section 27 ibid. The relevant paragraphs in the said judgment are extracted herein below :- If, therefore, we refer to language of 4. Section 27, it is more than clear that the duty which is paid is not necessarily pursuant to an order of assessment but can also be borne by him . Clauses (i) and (ii) of sub-section (1) of Section 27 are clearly in the alternative as the expression or is found in between clauses (i) and (ii). The object of Section 27(i)(ii) is to cover those classes of cases, where the duty is paid by a person without an order of assessment, i.e. in 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, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Learned Counsel for respondent relies upon Hero Cycles Ltd. v. Union of India [ 2009 (240) E.L.T. 490 (Bom.)], Aman Medical Products v. Commissioner of Customs, Delhi [ 2010 (250) E.L.T. 30 (Del.)], Akzo Nobel Coating India Pvt. Ltd. v. Commissioner of Customs (Sea), Chennai [ 2014 (312) E.L.T. 91 (Tri.- Chennai)], Commissioner of Customs (ACC Imp), Mumbai v. Andrew Telecom India P. Ltd. [ 2014 (306) E.L.T. 503 (Tri.-Mumbai)], Sesa Goa Ltd. v. Commissioner of Central Excise Customs, Goa [ 2014 (314) E.L.T. 674 (Tri.-Mumbai)] and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) [ 2004 (172) E.L.T. 145 (S.C.)]. 5. We note that the claim has been examined on merits by the first appellate authority and it was held that duty had been paid in excess. We do not think that the reliance on the decision of the Hon ble High Court of Delhi in re Aman Medical Products is misplaced for two reasons, viz., that, while the special leave petition has been admitted by the Hon ble Supreme Court the order has not been stayed and as the statutory provision for assessment in Customs Act, 1962 is now different than when the dispute in re Priya Blue Industrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing to self-assessment. At the same time, the self-assessment regime prevents the officer from extending the benefit of notification that inspector was entitled objected to. In the circumstances, the law laid down in re Flock (India) Pvt. Ltd. and Priya Blue Industries Ltd. is not applicable. 6.We notice that the Hon ble High Court of Delhi in re Aman Medical Products has elucidated that duty having been borne is a qualification in Section 27 of Customs Act, 1962 in addition to duty paid by him which was the rationale for the decision in re Flock (India) Pvt. Ltd. and re Priya Blue Industries before holding that : The Tribunal has referred to the cases of 5. 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 these cases, referred to by the Tribunal there was an assessment order which was passed and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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