2017 (7) TMI 1024

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....2008. A show cause notice was issued to them on 19.1.2009 proposing rejection of the said refund claim. On adjudication, the refund claim was rejected. Aggrieved by the said order, the appellant filed appeal before the ld. Commissioner (Appeal), who in turn, rejected their appeal. Hence, the present appeal. 3. Ld. Advocate Shri R. Subramanya for the appellant submitted that against the aforesaid seven shipping bills during the relevant period, the appellant had exported ductile iron spun pipes classifiable under Chapter Heading 7303 on payment of 10% export duty availing benefit of Notification No.66/2008-Cus dated 10.5.2008. Before export, vide their letter dated 21.5.2008, the appellant specifically claimed that the goods for export name....

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....rotestis refundable to them in view of judgment of the Hon'ble Delhi High Court in the case of Aman Medical Products Ltd. Vs. C.C., Delhi - 2010 (250) ELT 30 (Del.) and of the Tribunal decision in the case of C.C.E., Goa Vs. Sesa Goa Ltd. - 2014 (299) ELT 221 (Tri-Mumbai) which was later upheld by the Hon'ble Supreme Court reported in 2015 (321) ELT A 66 (SC). 5. Per contra, the ld. A.R. for the Respondent-Revenue has submitted that the applicability of export duty on ductile iron spun pipes has been disputed by the appellant before export of the goods itself through their letter dated 21.5.2008. Later, the goods were exported on payment of duty under protest. Subsequent amending Notification No.77/2008-Cus dated 13.6.08 cannot be held to ....

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....nd of Rs. 15,26,962/- of the export duty paid on the goods ductile iron spun pipes during the period 23.5.2008 to 05.6.2008 against seven Shipping Bills. The refund claim was mainly rejected on the ground that the export duty had been paid against shipping bills which were finally assessed but the Appellant had not challenged the same by filing Appeal. The contention of the appellant on the other hand is that there was no necessity to challenge the assessment of shipping bills to claim refund; also a detailed adjudication order of assessment was not issued to them. I find that the appellant had exported Ductile iron spun pipes and before export, their initial claim was that since the said product, attracts classification under Chapter Headi....

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....peal against the assessed copy of shipping bills immediately after receipt of the said assessed shipping bills before the Commissioner (Appeals). Non filing of the appeal against the assessment order of the shipping bills, cannot make them eligible for refund I view of the principle of law settled by the Honourable Supreme Court in Priya Blue Industries Ltd.s case (supra). Their Lordship observed as follows: 5. Under Section 27 of the Customs Act, 1962 a claim for refund can be made by any person who had (a) paid duty in pursuance of an Order of Assessment or (b) a person who had borne the duty. It has been strenuously submitted that the words in pursuance of an "Order of Assessment" necessarily imply that a claim for refund can be made wi....