TMI Blog2009 (2) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... s also by the case law cited by SDR, we hold that the subsequent refund claim was only liable to be rejected - E/2292/2003 - A/78/2009-WZB/C-II/EB - Dated:- 6-2-2009 - S/Shri P.G. Chacko, Member (J) and K.K. Agarwal, Member (T) Shri Vinod Awtani , C.A. , for the Appellant. Shri H.B. Negi, SDR, for the Respondent. [Order per : P.G. Chacko, Member (J)].- This appeal was filed by the assessee against the rejection a of refund claim relating to certain goods cleared from warehouse after warehousing period. The facts of the case are as follows:- Imported raw materials required for the manufacture of goods to be supplied to M/s. ONGC for its oil exploration/exploitation activities were exempt from payment of duties of cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27-3-2001 to 8-5-2001. Subsequently, they filed a refund claim for Rs. 1,47,841/- on the ground that, as the final product was supplied to ONGC for their oil exploration and exploitation activities, the imported raw materials consumed in the manufacture of the said product was exempt from payment of Customs duties. This claim was rejected by the Deputy Commissioner mainly on the ground that the party had not preferred appeal to the Commissioner (Appeals) against the assessment of ex-bond Bill of Entry dated 4-1-2001. The appeal filed by the party against the rejection of refund claim was dismissed on merits by the Commissioner (Appeals). Hence the appeal before us. 2. It is not in dispute that the appellants had not sought extension of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty assessed could be claimed only after the assessment order was set aside in appeal was not applicable. In this connection, reliance was also placed on Dudhari Exports P. Ltd. v. Commissioner of Customs, Kandla, 2007 (210) E.L.T. 462 (Tri.-Ahmd.). 3. On the other hand, the ld. SDR reiterated the reasons stated by the lower appellate authority. According to him, the Apex Court's ruling in Flock (India) case and Priya Blue Industries case would be squarely applicable to the facts of the instant case. He also relied on the Tribunal's Larger Bench decision in Commissioner of Customs (Imp.), Nhava Sheva v. Eurotex Industries Exports Ltd., 2007 (216) E.L.T. 137 (Tri.-LB) wherein it was held that refund claim was not maintainab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x-bond Bill of Entry dated 4-1-2001 was not challenged by the assessee under Section 128 of the Customs Act. In such circumstances, the ruling in Flock (India) case and Priya Blue Industries case as also the Tribunal's decision in Eurotex Industries case are squarely applicable. The case of Dudhan Exports (supra) is distinguishable on facts. In that case, it was found that there was no wrong assessment of duty on the date of assessment and apparently the payment of duty was not under protest. It was held that the subsequent refund claim filed by the assessee was not hit by the Apex Court's ruling in Priya Blue Industries (supra). In the instant case, as we have already noted the assesse's conduct was altogether different. All their past cle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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