TaxTMI 
TaxTMI 
2013 (8) TMI 653
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....were assessed to duty by the Customs Department and the Appellant cleared the goods on 02.12.2008 on payment of Additional Customs Duty. Subsequently, the Appellant had filed a Refund Claim of Rs.1,06,515/- on 21.01.2009 on the ground that the imported goods were exempt from payment of Additional Customs Duty in terms of exemption Notification No.20/2006-Cus dated 01.03.2006. It is claimed that the said exemption Notification was not taken into consideration by the Department at the time of assessment of the Bill of Entry and hence, they were entitled to refund of duty of Rs.1,06,515/- paid wrongly by them. Learned Assistant Commissioner of Customs rejected the Refund Claim on the ground that the Appellant had never requested for re-assessm....
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....ection 27 of the Customs Act, 1962. Further, he has submitted that there is no question of filing an appeal before the Commissioner (Appeals) in absence of any appealable order and the question of challenging the assessment separately did not arise as the Refund Application was filed under the provisions of Section 27 of the Customs Act, 1962, furnishing reasons for refund and challenging the wrong assessment in the Bill of Entry. Further, he has referred to the judgement of the Hon'ble Punjab and Haryana High Court in the case of Bansal Alloys & Metals Pvt. Ltd. vs. CC, Amritsar 2009 (240) ELT 483 (P&H). He has also referred to the ratio of the judgement in the case of Aman Medical Products Ltd. vs. CC, Delhi 2010 (250) ELT 30 (Del.). 4....
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....le Supreme Court, the ratio of the said judgement ought not be followed to decide other cases, as the principle settled in the said judgement is in jeopardy. This principle of law has been laid down by the Hon'ble Supreme Court in the case of Union of India vs. West Coast Paper Mills Ltd. 2004 (164) ELT-375 (SC). Further, he has submitted that the Refund Application filed by the Appellant was not maintainable, as no appeal had been preferred against the Assessment Order by the Appellant before the appropriate Appellate Authority. 5. Heard both sides and perused the records. I find that the Appellant had filed a Bill of Entry on 28.11.2008 which had been assessed and on the basis of such assessment, the Appellant had paid the Additional C....
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.... by relying upon the decision of the Apex Court in the case of Priya Blue Industries Ltd. (supra) cannot be faulted." 5.1. I find that the Hon'ble Apex Court first in the Flock India's case (supra) has held in clear terms that in absence of an appeal challenging the assessment order, no refund application is maintainable for excess amount of duty, if any, paid. It is also observed that if an assessee fails to challenge an order of assessment issued by proper authorities, but resorts to file a refund claim for relief, then such approach would disturb the very scheme of the statute and would create uncertainty in the process of levy and collection of duty. The Hon'ble Apex Court at para 10 of the Flock India's case (supra) observed as - ....
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....e order is not liable to be questioned and the matter is not to be reopened in a proceeding for refund which if we may term it so is in the nature of execution of a decree/order. In the case at hand it was specifically mentioned in the order of the Assistant Collector that the assessee may file appeal against the order before the Collector (Appeals) if so advised." 5.2. The above principle has been laid down by the Hon'ble Apex Court in relation to the claim under the Central Excise Act, which was later challenged being not applicable to Customs cases in Priya Blue's case(supra) by filing a review application. After analyzing all aspects including the provisions contained under Section 27 of the Customs Act, 1962, the Hon'ble Apex Court ....
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....thority. 5.4. I find that the judgement of the Hon'ble Punjab and Haryana High Court in Bansal Alloys' case (supra) relied by the learned Advocate, is not applicable to the facts of the present case. In the said case, the duty was paid on the quantity of goods declared in the respective bills of entry, which were later found to be in short. Accordingly, the excess duty paid on the quantity initially shown in the bills of entry, was later claimed as refund, taking into consideration the actual quantity of goods imported by the assessee in that case. Their Lordships have distinguished the judgements of the Hon'ble Supreme Court in Flock India and Priya Blue's cases (supra) at paras 17 & 18 of the said judgement and held that the same are n....