TMI Blog2008 (8) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... with. where an assessee, by his own conduct, renders a condition attached to exemption notification unworkable or incapable of being complied with, he is precluded from pleading that the assessment was provisional by virtue of such condition. – the assessment can not be held to be provisional – refund application rejected on the ground of period of limitation upheld. - C/203/2001 - 934/2008 - Dated:- 27-8-2008 - S/Shri P.G. Chacko, Member (J) and P. Karthikeyan, Member (T) Smt. Sridevi, Advocate, for the Appellant. Shri M.K.A.K. Mohiddin, JDR, for the Respondent. [Order per : P.G. Chacko, Member (J)].- The appellants had imported heavy metal scrap and paid duty of Rs. 3,33,089/- thereon at concessional rate in terms of Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racter of duty and, therefore, the claim for its refund can be considered only under Section 27 of the Act. It is submitted that the statutory period of limitation is binding on all quasi judicial authorities. In this connection, reliance is placed on the Apex Court's judgment in Miles India Ltd. v. Assistant Collector of Customs [1987 (30) 641 (S.C.)]. 3. After giving careful consideration to the submissions, we are of the view that the appellants cannot abandon the applicability of Section 27 of the Customs Act, nor can they resist the applicability of the limitation prescribed thereunder. As a matter of fact, in their very refund claim, they requested for condonation of the delay, thereby acknowledging the applicability of the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w by the counsel, as a legal plea. Admittedly, the goods were abandoned by the assessee before any order was passed by the assessing authority under Section 47 of the Customs Act for clearance of the goods for home consumption. Section 23(2) of the Customs Act deals with this kind of a situation and says that the assessee shall not be liable to pay duty on the abandoned goods. What the appellants paid was the duty assessed by the department. What they claimed was refund of this duty under Section 27 of the Customs Act. In their refund application, they also requested for condonation of the delay. In the circumstances, we do not think that the appellants can take a stand to the contra. They cannot plead that the amount paid by them was not d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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