TMI Blog2022 (1) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commissioner (Refunds) have passed order in a mechanical way, by simply accepting the advice of the Appraising Group showing total non-application of mind. The order of Commissioner (Appeals) is erroneous and misconceived wherein he observed that the refund claim is not entertainable for want of reassessment of the Bill of Entry in question - admittedly Revenue have been accepting the classification of the same goods under CTH 6210 10 00 both prior to and subsequent to the Bill of Entry in question. Thus, the whole exercise of Revenue in rejecting the refund is perfunctory and bad, and at the same time a colourable exercise of power. The appellant is entitled to refund of the excess amount of duty paid erroneously of Rs. 12,24,22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id. Thereafter, deficiency memo was issued pointing out that reassessed Bill of Entry in original has not been submitted. The appellant requested to supply the original Bill of Entry from the Department for getting it reassessed, which was returned vide letter dated 14-8-2018, but not served on appellant. The refund claim was thereafter forwarded to Assistant Commissioner of Customs, Appraising Group-3 for examination of the same on imports and verification of the same in the ICES, if found permissible. 3. The Assistant Commissioner, Appraising Group-3 after examination observed that - imported item i.e. Spacel C. Medium Single Use coverall-90 SGM Yellow, appears not classifiable under CTH 6210 10 00 as claimed by the importer, as the Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) the Hon ble High Court held - for refund, duty not necessarily be paid pursuant to an order of assessment, but can also be borne by him as per clause (ii) of Section 27(1) of Customs Act, 1962, which clearly is in the alternative, as expression or is found in between. No assessment order was challenged in the case, as there is no contest or lis and hence no adversarial assessment order. Further held, non-filing of appeal against assessed Bill of entry where there is no lis between importer and Revenue at the time of payment of duty, will not deprive the importer of his right to file refund claim. It was also urged that the appellant have not received the original Bill of Entry back from the Department, although it is claimed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assistant Commissioner, Appraising Group-3 is bad and untenable. For reference, appellant have also enclosed copies of Bill of entry dated 13-12-2017 and 11-5-2018, thus both prior to the Bill of Entry under dispute and subsequently also, Department have been accepting the classification of the same goods under CTH 6210 10 00, without any dispute. This material fact has been ignored by the Adjudicating Authority. It was also urged that the order-in-original is non-speaking and cryptic. 7. Learned Commissioner (Appeals) observed that the appellant have filed refund claim without having the assessment of Bill of Entry in question modified/amended as per provision of law. No reassessed Bill of Entry was submitted. The appellant could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments made by the appellants have not been considered. Thus, the order is passed in violation of principles of natural justice. The refund claim of the appellant is maintainable. It must be governed by the law in force, when the claim was filed. The decision of ITC was passed much after the refund claim was filed, and thus the same will not apply to present case. The refund claim was filed within 90 days of filing of the Bill of Entry. Thus, it has been filed within the appealable period under Section 128 of the Customs Act. Therefore, alternatively, the refund claim filed must be treated to be an appeal or request for modification. There is no dispute that on merits, appellant is entitled for refund. Without prejudice, it is submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Bill of Entry in question. Thus, I find that the whole exercise of Revenue in rejecting the refund is perfunctory and bad, and at the same time a colourable exercise of power. In such facts and circumstances, I hold that the principles laid down in the ruling of ITC Limited (supra) by Hon ble Supreme Court are not applicable in the instant case. 12. Accordingly, in view of my findings and observation, I allow this appeal and set aside the impugned order. I hold that appellant is entitled to refund of the excess amount of duty paid erroneously of Rs. 12,24,224/-. Accordingly, the Adjudicating Authority is directed to grant refund with interest as per rules. Thus, the appeal is allowed. (Operative portion of order pronounced in op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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