TMI Blog2009 (9) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... iwari, Advocate, for the respondent. [Judgment per Valmiki J. Mehta, J.]. - The only issue which arises for consideration in this present appeal is whether an assessee who is entitled for concessional rate of duty pays the higher duty by inadvertence is not entitled to grant of refund of the excess duty paid unless he had filed an appeal against the 'order' by which he had deposited the duty on filing of the bill of entry. In other words, the assessee contends that in the present case no 'order' has been passed because the assessee simply filed the bill of entry and paid the customs duty in mistake without taking the benefit of the notification No. 6/2002 dated 1.3.2002 due to ignorance. The Customs Excise and Service Tax Appellate Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty] [in such form and manner] as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of [duty and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such [duty and interest, if any, paidon such duty] had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excise and Customs Laws (Amendment) Act, 1991, such application shall be deemed with in accordance with the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority subsequently by filing a claim for refund on the ground that adjudicating authority had committed an error in passing his order. These judgments will therefore not apply when there is no assessment order on dispute/contest, like as is in the facts of the present case. 6. We, therefore, answer the question framed by holding that the refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 and which claim will fall under clause (ii) of sub section (1) of Section 27. 7. We accordingly set aside the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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