TaxTMI 
TaxTMI 
TaxTMI 
2016 (3) TMI 431
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....ree orders dated 21st December 2015 passed by the Assistant Commissioner (Refund) in the office of the Commissioner of Customs, Air Cargo Export, Refund Section, New Delhi rejecting the refund claims filed by the Petitioner in respect of the bills of entry (B/Es) filed by it for the months of August 2014, September 2014 and October 2014 respectively. 2. The facts in brief are that the Petitioner imported mobile phones on which it paid both customs duty as well as additional customs duty (commonly known as countervailing duty - CVD). The Petitioner lodged a refund claim in Form 102 under Sections 27(1)(a)/ 27(1)(b) of the Customs Act, 1962 ('Act'). The reason given by the Petitioner for making the claim was that it was liable to pay only 1%....
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....er without protest. 4. A hearing was afforded to the Petitioner by the Assistant Commissioner (Refund) and written submissions were also filed by it. According to the Petitioner, it drew the attention of the Assistant Commissioner (Refund) to the decision of this Court in Aman Medical Products Limited v. Commissioner of Customs, Delhi 2010 (250) ELT 30 (Del) in which it was held that in the case of a self-assessment, a refund application could be maintained under Section 27 of the Act, as it stood prior to 8th April 2011, without having to file an appeal since there was in fact no assessment order in the first place. 5. In the impugned order while rejecting the refund claim, the Assistant Commissioner (Refund) observed that the "claimant ....
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.... again an assessment order had been passed. 8. In Aman Medical Products Limited v. Commissioner of Customs, Delhi (supra), a Division Bench of this Court was considering an instance of an importer having filed B/Es, paid customs duty and thereafter claimed refund under Section 27 of the Act. The question of law framed by the Court in the appeal filed by the Assessee against an order of refusal of refund read as under: "Whether non-filing of appeal against the assessed Bill of Entry in which there was no lis between the importer and the Revenue at the time of payment of duty will deprive the importer of his right to file refund claim under Section 27 of the Customs Act, 1962?" 9. The above question was answered in the negative. Analysing....
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..... It is significant that with effect from 8th April 2011, the structure of Section 27 of the Act has undergone a change. The relevant portions of Section 27, as amended with effect from that date, read as under: 27. Claim for refund of duty.- (1) Any person claiming refund of any duty or interest,- (i) paid by him; or (ii) borne by him, may make an application in such form and manner as may be prescribed for such refund of to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest: Provided that where an application for refund has been made before the date on which the Finance Bill, 2011 receives the assent of the President, such appl....
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....s the case may be], if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person; (b) the [duty and interest, if any, paid on such duty], on imports made by an individual for his personal use; (c) the [duty and interest, if any, paid on such duty] borne by the buyer, if he had not passed on the incidence of such [duty and interest, if any, paid on such duty], to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75; (f) the [duty and interest, if any, paid on such duty] borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify: Provided further tha....
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.... order has been reviewed or modified in appeal such further order will obviously be taken into account. In other words, under Section 27 of the Act, as it now stands, it is not open to an authority to refuse to consider the application for refund only because no appeal has been filed against the assessment order, if there is one. 13. As far as the present case is concerned, there was indeed no assessment order as such passed by the customs authorities. Although under Section 2 (ii) of the Act, the word 'assessment' includes a self-assessment, the clearance of the goods upon filing of the B/E and payment of duty is not per se an 'assessment order' in the context of Section 27 (1) (i) as it stood prior to 8th April 2011, particularly....