Tribunal allows refund claim for excess duty payment, rejects Revenue's challenge. Precedents distinguished.

The Tribunal allowed the appellant's refund claim for excess duty payment as the duty was paid twice due to an error. The Revenue's argument that the refund claim was not maintainable without challenging the assessment order was rejected. The Tribunal distinguished the case from legal precedents cited by the Revenue, emphasizing the absence of an appeal or protest against the assessment. It highlighted the appellant's double payment situation and the lack of examination or order by Central Excise officers. The Tribunal concluded that without an order by the officer below Commissioner (Appeals), no appeal was possible, setting aside the rejection and allowing the refund claim.

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Issues:
Refund claim rejected by Commissioner (Appeals) based on assessment order not being challenged. Appellant filed appeal against rejection of refund claim.

Analysis:
The appellant calculated duty liability, including duty debited for clearance for home consumption and export. Erroneously debited duty twice, leading to excess payment. Filed refund claim for excess duty. Dy. Commissioner found duty paid twice, sanctioned refund. Revenue appealed, arguing refund claim contrary to assessment order not challenged by appellant, citing legal precedents. Appellant argued double payment case, no assessment done by officers, sought order set aside. Presented legal precedents supporting their case.

The issue in question was whether appellant, having made double payment, is entitled to refund without challenging assessment. SDR argued self-assessment accepted, no challenge made, refund not maintainable per legal precedents. However, Tribunal disagreed with SDR's contentions. Differentiated case from legal precedents cited by SDR, emphasizing absence of appeal or protest against assessment in those cases. Tribunal highlighted appellant's double payment situation, lack of examination or order by Central Excise officers.

Tribunal noted Central Excise Laws require assessment for every clearance, with duty of officers to examine double duty payments. Referenced a Tribunal case stating self-assessment not appealable under Section 35F of Central Excise Act. Concluded no appeal possible without order by officer below Commissioner (Appeals). Found no such order in appellant's case, setting aside impugned order and allowing refund claim. Decision pronounced on 10-2-2010.

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