2010 (1) TMI 1073

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.... had paid special additional duty without availing the benefit of Customs Notification No. 20/2006 dated 1-3-06 and thereafter they filed a refund claim on 12-7-07 for refund of Rs. 6,54,953/- with interest. The refund claim has been rejected by both the lower authorities on the ground that the appellant had not challenged the order of assessment in the Bill of Entry filed by them and therefore the assessment became final and thereby the duty paid also became final. The lower authorities have relied upon the decision of Hon'ble Supreme Court in the case of M/s. Priya Blue Industries as reported in 2004 (172) E.L.T. 145 (S.C.) Board's Circular No. 24/2004-Cus., dated 18-3-04 and the decision of the Hon'ble Supreme Court in the matter of CCE,....

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....he fact that the lower authority has not given a decision as regards eligibility of refund and there is no conclusion about unjust enrichment, the matter has to go back to the original adjudicating authority for fresh decision. Accordingly, the matter is remanded to the original adjudicating authority, who shall consider the issue afresh in the light of the decision of Hon'ble High Court of Delhi in the case of M/s. Aman Medical Products Ltd., the decision of the refund sanctioning authorities at Tughalakabad. Needless to say that the appellant shall be given an opportunity to present their case. 3. In view of the fact that Bills of entry are of 2006 and considerable time has already elapsed, the original adjudicating authority is direct....

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....6 and the department is not finalizing the Bills of Entry even more than two years are over. However, he fairly agrees that according to his understanding, after an appeal was filed against the order of Commissioner (Appeals), the Bills of Entry have been finalized. He submits that his submission is on the basis of instructions received from the client. He has not verified whether this information is correct. 3. On the other hand, learned JDR supports the stand taken by the Commissioner (Appeals). 4. After considering the submissions made by both sides, I find that in this case, what has been given in the letter of Assistant Commissioner is advice to the appellant to file a refund claim after bills of entry are finalized and before ap....