TMI Blog2008 (4) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... hri J. M. Sharma, Consultant, for the Respondent. [Order per S. N. Jha, President] - This appeal by the Revenue is directed against the order of the Commissioner of Customs (Appeals) dated 28.1.2005 setting aside the order of the Deputy Commissioner of Customs (Refund) dated 27.1.2003 and remanding the matter for decision on merits. By the said order dated 27.1.2003 the refund claim of the respondent had been rejected on the ground that the respondent did not challenge the assessment by way of appeal, therefore, the refund claim was not maintainable. 2. Brief facts of the case are that the respondent filed five bills of entry dated 22.5.2002, 22.5.2002, 23.5.2002, 1.6.2002 and 1.7.2002 for clearance of canuula for injection needle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on the ground that the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot, be countenanced." 4. A similar view was expressed by the Apex Court in Priya Blue Industries Ltd. Vs. Commissioner of Customs (Preventive) 2004 (172) ELT 145 (SC) wherein submissions to the contrary on behalf of the assessee we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order. 8. The words 'in pursuance of an Order of Assessment' only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in Appeal or reviewed a claim for refund can be maintained." 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to the respondent, it was entitled to under the notification, it cannot later contend that there was no adjudication and no speaking appealable order was passed. A person cannot be allowed to take benefit of his own conduct. 7. Section 27 of the Customs Act which deals with claim for refund lays down that any person claiming refund of any duty and interest, if any, paid on such duty- (i) paid by him in pursuance of an order of assessment or (ii) borne by him, may make an application for refund of such duty and interest, if any. As seen above, in the case of Priya Blue Industries Ltd., submission was made that the expression 'in pursuance of an order of assessment' necessarily implies that a payment of duty must be pursuant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the amount of duty had been assessed on the bill of entry which was paid under protest. The person then filed claim for refund on the ground that the duty had wrongly been levied. The refund claim was rejected. Appeals therefrom were also rejected by the Commissioner (Appeals) and the Tribunal following the decision in Flock ( India ) Pvt. Ltd. case. 10. The facts of the present case are similar to those of Priya Blue Industries Ltd. As a matter of fact, the respondent paid the duty without even raising protest. We fail to understand as to how without challenging the assessment by way of appeal it could claim refund of the alleged excess amount. If such claim were to be entertained it would follow that the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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