2017 (9) TMI 1449

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....ondent that by mistake, they did not incorporate the Notification No.20/2006-CUS dated 01.03.2006 Sl.No.36 in the check list which resulted in the assessment of the Bill of Entry straightway on merit without taking effect of any Notification benefit and for that they ended up paying an extra duty amounting to Rs. 2,76,861/-. It is the case of the department that since the respondent had filed the refund claim without challenging the assessment/ the same is not maintainable in view of the Apex Court's decision in the case of Commissioner of Central Excise Vs. Flock India Ltd. [2000 (120) ELT 285 (SC)]. Vide the impugned order the lower appellate authority allowed the appeal following the decisions of the Tribunal in the case of Goa Shipy....

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.... of Customs (Preventive), 2004 (172) E.L.T. 145 (S.C.). In both these cases, referred to by the Tribunal there was an assessment order which was passed and consequently it was held that where an adjudicating authority passed an order which is appealable and the party did not chose to exercise the statutory right of 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 adjudicating authority had committed an error in passing his order. These judgments will therefore not apply when there is no assessment order on dispute/contest, like as is in the facts of the present case. 6. We, therefore, answer the question framed by holding....