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of <h1>Refund claims contrary to assessment orders not maintainable without prior modification under Section 28</h1> <h3>COMMISSIONER OF CUSTOMS, BANGALORE Versus M/s MADHUS GARAGE EQUIPMENTS BANGALORE</h3> The SC partially heard an appeal challenging HC's dismissal of department's appeal as not maintainable. CESTAT South Zonal Bench applied SC precedent from ... Dismissal of appeal preferred by the department as not maintainable - refund claim contrary to assessment order - HELD THAT:- From the order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) South Zonal Bench at Bangalore dated 31st January, 2006, it appears that the Tribunal relied upon the decision of this Court in the case of Priya Blue Industries Ltd. Vs. CC(Preventive) [2004 (9) TMI 105 - SUPREME COURT] to hold that refund claim contrary to assessment order is not maintainable without order of assessment having been modified in appeal or review under Section 28 of the Customs Act, 1962. The order passed by the Assistant Commissioner of Customs would reveal that the differential duty to which the respondent is liable to pay is only Rs.11,03,844/- The present civil appeal disposed off by maintaining the order of the CESTAT leaving open the question of law. The Supreme Court, in a partial bench comprising Hon'ble Justices Prashant Kumar Mishra and Manmohan, heard an appeal challenging the High Court's dismissal of the department's appeal as not maintainable, with liberty to approach the Supreme Court. The CESTAT South Zonal Bench relied on this Court's precedent in Priya Blue Industries Ltd. v. CC (Preventive), 2004 (172) ELT 145 (SC), holding that a refund claim 'contrary to assessment order is not maintainable without order of assessment having been modified in appeal or review under Section 28 of the Customs Act, 1962.' Given the differential duty involved (Rs. 11,03,844), the Court disposed of the civil appeal by maintaining the CESTAT order, expressly 'leaving open the question of law.' Pending applications were disposed of accordingly.
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