2016 (12) TMI 265

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....from whole of duty by Notification No. 4/2006  CE, the respondents preferred refund claim. The same was returned by the Assistant Commissioner observing that the refund cannot be claimed without challenging the assessment. The respondents filed appeal before the Commissioner (Appeals), who passed the impugned order remanding the matter to re-examine the refund claim. 3. In his order, the Commissioner (Appeals) held as under: "I have perused the records and various submissions made by the appellants. The question that is required to be considered is that whether a refund claim made would be considered without revising the assessment. By their Circular No. 24/2004-Cus dt. 18.03.2004, the CBEC issued instructions to the effect....

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....erest as long as such duty or interest was paid or borne by such person. The conditionality of such payment having been made pursuant to an order of assessment does not exist. Secondly, once an application is made under Section 27(1) of the Act, it is incumbent on the authority concerned to make an order under Section 27(2) determining if any duty or interest as claimed is refundable to the applicant. The proviso to Section 27(2) of the Act sets out the instances where refund should be paid to the claimant instead of being credited to the Consumer Welfare Fund. The only relevance as far as payment of duty under protest is concerned is indicated in the second proviso to sub-section (1) of Section 27 of the Act which states that the limitatio....