TMI Blog2002 (11) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... at 25% basic duty and 10% countervailing duty instead of 50% basic and 20% countervailing duty as it was assessed. 2. The assessments made on the bill of entry were held to be final, since no appeal was filed against such assessments. Therefore subsequent claim of refund was rejected for lack of jurisdiction by the Asst. Commissioner. 3. The Commissioner (Appeals) while disposing of the appeal and rejecting the refund held that as the appellants neither applied to the initial assessments authority for re-assessments nor filed any appeal against the initial assessments of the bill of entry which is an appealable order and the duty were not paid under protest. Therefore the refund was rightly rejected. 4. The appellants have taken the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al for his personal use or by Govt. job by any educational, research or charitable institution or hospital, before the expiry of one year; (b) in any other case, before the expiry of six months, from the date of payment of duty and interest, if any paid on such duty........" A Statutory right has been conferred upon the assessee to file Refund Application if he is claiming refund on any duty paid by him in pursuance of an Order of Assessment on a BE Section 27(1) thus statutorily provides for filing the Refund Claim in the following situation — (i) There is an existence an Order of Assessment. (ii) Duty has been paid by the assessee of such Order of Assessment. (iii) The assessee claims refund of the said duty paid by him in pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and that the duty in question was paid in pursuance of such Order of Assessment. (b) A full Bench of the Supreme Court in the case of M/s. Karnataka Power Corpn. Ltd. v. CC (Appeals) - 2002 (143) E.L.T. 482 has held in that case wherein the assessee :- "... had imported Epoxy Coils and filed Bills of Entry which were assessed under sub-heading No. 8544.11. No appeal was filed against the orders of assessment on the Bills of Entry and the Customs Duties so assessed were paid. Thereafter, the assessee filed an application for reassessment and refund a part of the duty on the ground that the correct classification should have been under sub-heading No. 8501.64. Letters in this regard were addressed to the Assistant Collector. Ultimately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derstood the matter. There is, however, no estoppel in law against a party in a taxation matter. In order to clear the goods for the customs, the appellants Agents may have given the classification in accordance with the wishes of the authorities or they may even be under some misapprehension. But when law allows them the right to ask for refund on a proper appraisement and which they actually applied for, we do not attach any significance to this aspect of the matter pointed out by the counsel. The question is of general importance and must be decided on its merits." The said position of law has been accepted by the C.B.E.C. in CBEC's Customs Manual of instructions issued on 11-9-2001. In Chapter 15 of the said manual it has been clarifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision was rendered by a division Bench of the Hon'ble Apex Court in the case of refund under the Central Excise Act it is not found that the provisions of section 11B of the Central Excise Act and section 27 are pari materia. The facts in this case were totally different. The later decision issued by a full Bench of three Members of the Supreme Court in the case of Karnataka Power Ltd. - 2002 (143) E.L.T. 482 would therefore be the correct interpretation of law on refunds under Section 27 of the Customs Act, 1962. 6. In this view we find no reason to sustain the orders of the lower authorities. Order of the lower authorities is set aside. The original authority should determine the refunds if admissible under Section 27 of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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