TaxTMI 
TaxTMI 
2014 (1) TMI 429
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....e Customs Act by which the tariff value of the goods was reduced to USD 302 per MT vide. 2. At the relevant time, the provisions under Section 15 of the Customs Act relating to Date for determining the rate of duty and tariff valuation of imported goods read as under:- Section 15. Date for determination of rate of duty and tariff valuation of imported goods:- (1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force,- (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which the goods are actually removed from the warehouse; (c) in the case of any other goods, on the date of payment of duty; Provided that if a bill of entry has been presented before the date of entry inwards of the vessel or the arrival of the aircraft by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards or....
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.... public. The proceedings on record shows that there was no dispute about the tariff value prevailing on the date of clearance which was adopted for the assessment of the Bill of Entry but such assessment was based on incomplete information. The decision of the Hon'ble Supreme Court in the case of CCE Vs. Flock India -2000 (120) ELT 285 (SC) and Priya Blue Industries Vs. Commissioner -2004 (172) ELT 145 (SC) were the cases wherein there were disputes at the time of assessment between the Department and the assessee and it was decided by the assessing officer through assessment orders. It was in such circumstances that the Hon. Apex Court held that assessment order had to be challenged by filing appeal under Section 128 of the Customs Act or the relevant provision under Central Excise Act. The learned Advocate pointed out that this matter has been examined by the Hon'ble Delhi High Court in the case of Aman Medical Products Ltd. Vs. Commissioner of Customs -2010 (250) ELT 30 (Del.) and the Delhi High Court has held that only if a 'lis' existed at the time of assessment there was a need for pursuing remedy through Section 128. Where excess duty was paid due to ignorance remedy can be ....
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....ulars and Instructions issued by the Central Board of Excise & Customs are binding on the Department unless they are contrary to the law laid down by the Supreme Court on the issue. In this connection reliance be made on the following decisions of the Supreme Court : (i) Fenner India Ltd. v. Collector of Central Excise, 2004 (167) E.L.T. 18 (S.C.) (ii) Hindustan Aeronautics Ltd. v. Commissioner of Income-tax, 2000 (119) E.L.T. 513 (S.C.) by the learned Advocate is well founded. Commissioner (Appeals) was bound to follow the Instructions of the Board as in the Manual. There is no decision of the Supreme Court, including the one referred to in the said order and the one which have laid down that even in case like this as referred in the Board's Manual of instruction, there cannot be any refund, without assailing the Assessment Order. This order, therefore, being contrary to the said binding Instructions of the board is invalid and on this ground required to be set aside. 4. He also submits that the authorities should have on their own exercised powers under Section 149, 154 and re-assessment under Section 17 of the Customs Act. Therefore, he prays that the refund may be granted. ....
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....here was a dispute between the assessee and the department at the time of filing of classification list. The Assistant Commissioner revised the classification claimed by the assessee by issuing a speaking order. The order was not challenged. Subsequently they filed refund claim on the ground that the classification determined originally was wrong. In the facts of the said case the Hon. Apex Court held that,- there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant.---- 9. I have also c....