TMI Blog2004 (9) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 28 and/or modified in an Appeal that 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 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... va, J.]. - By this Review Petition an Order dated 14th November, 2003 is sought to be reviewed. 2. The facts necessary for the purposes of this Order are as follows : The Petitioners had imported a ship for breaking purposes. They filed a Bill of Entry. The amount of duty payable was assessed. The Petitioners paid the duty under protest. They then filed a Claim for refund of Rs. 79,64,648/- on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and that the Judgment of this Court in Flock (India)'s case (supra) would not be applicable, notice was issued. 4. We have heard parties at great length. 5. Under Section 27 of the Customs Act, 1962 a claim for refund can be made by any person who had (a) paid duty in pursuance of an Order of Assessment or (b) a person who had borne the duty. It has been strenuously submitted that the words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me redundant as the Appeal proceedings would never be over within that period. It was submitted that in the claim for refund the party could take up the contention that the Order of Assessment was not correct and could claim refund on that basis even without filing an Appeal. 6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India)'s ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f six months. It was still held, in Flock (India)'s case (supra), that in the absence of an Appeal having been filed no refund claim could be made. 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 le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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