2003 (2) TMI 407

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....llants imported one consignment of thermo plastic polyurethane resin against Bill of Entry, dated 6-8-86 and paid duty at standard rate at 100% CBD + 40% Ayd. + 40% CV and cleared the goods for home consumption. The Bill of Entry was assessed finally under Section 17 of the Act and duty was paid at the above said rate by the appellants without any protest. Later on, they filed refund claim before the lower authority on the ground that their goods were entitled for concessional rate of duty in terms of Notification No. 345/86-Cus, dated 16-6-86 by virtue of which the duty rate was to be 30% CBD + Ayd Nil + CV Nil. The excess duty paid by them was to the tune of Rs. 3,40,156/-. Initially the refund claim of the appellants was rejected by the ....

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....rder vide which the duty was charged from them. 5. It has not been disputed before me that in the above said case, the Apex Court has ruled that when an order vide which the duty has been charged from an assessee had not been challenged by the assessee, no refund claim on the ground of having been asked to pay excess duty allegedly, would be later on maintainable. In the instant case also admittedly the order on the Bill of Entry vide which the appellants were charged duty at the standard rate had not been challenged by them and that order had become final. 6. Learned Counsel for the appellants has, however, contended that under Section 129D of the Customs Act (corresponding to Section 35E of the Central Excise Act) the scope of....

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....sp;     PCA Electricals (P) Ltd. v. CCE, 2001 (138) E.L.T. 1182 (T) = 2000 (38) R.L.T. 843 (j)      CCE v. National Organic Chemicals, 2000 (40) R.L.T. 261 (k)     Vaiacom Electronics (P) Ltd. v. CCE, 2002 (145) E.L.T. 563 7. On the other hand, the learned SDR has refuted the contention of the Counsel by contending that     issues before the Commissioner (Appeals) in an appeal   filed by the Revenue against the order-in-original were two, firstly as to whether the appellants were legally entitled to the refund of the duty amount and secondly, whether   the order-in-original passed in that regard in their favour, was legally justi....

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....as not debarred from exercising this power under Section 129D of the Customs Act. He was required to examine the legality of the order-in-original of the Deputy Commissioner and while examining the same, in my view, he had rightly reversed that order which was passed by the adjudicating authority in violation of the Apex Court judgment. It is also difficult to accept the argument of the Counsel that the issue regarding the non-maintainability of the refund claim of the appellants, in view of the above referred judgment of the Apex Court, did not arise out of the order-in-original. The adjudicating authority was legally bound to decide the refund claim of the appellants within the four corners of the law. He was not supposed or expected to o....