TaxTMI 
TaxTMI 
2018 (12) TMI 799
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....ed below:- SI No. Appeal No. Bill of Entry No. Date Refund claim amount (in Rs.) 01. C/77033/2018 6335058 11/08/2016 31,298/- 02. -do- 6335063 11/08/2016 54355/- 03. C/77034/2018 8001197 28/12/2016 4,10,104/- 04. C/77035/2018 3695450 23/12/2015 3,49,890/- 05. -do- 4316468 19.02.2016 1,22,941/- 06. -do- 4534557 10/03/2016 1,15,721/- 07. -do- 4661812 21/03/2016 2,14,440/- 08. -do- 4766478 31/03/2016 2,38,814/- 09. -do- 4884707 12/04/2016 1,21,899/- 10. -do- 4985692 21/04/2016 84,953/- 11. -do- 5243185 12/05/2016 1,15,645/- 12. -do- 5379595 24.05.2016 68,897/- 13. -do- 5457446 31.05.2016 1,32,360/- Total Refund Claim Amount (in Rs.) 2,061,317/- 2. By the impugned orders, the Commissioner (Appeals) rejected the appeal filed by the assessee. Hence, the present appeal before the Tribunal. 3. Heard both sides and perused the appeal records. 4. On perusal of the impugned orders, we find that the refund claims were rejected solely on the argument that the appellants had....
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....arred by the limitation of time. 6. Section 27 ibid provides the modalities and procedures for claiming refund of Customs Duty. The said provision mandates that duty paid in pursuance of an order of assessment or borne by the importer, can claim the same as refund. In this case, an amount of Rs. 6,06,887/- towards excise duty/additional duty of customs was paid by the respondent, since the benefit provided under notification dated 1-3-2006 was not claimed in the Bill of Entry. On the basis of information furnished by the respondent, since the Bill of Entry was assessed by the Customs Department and the assessed duty was paid by the respondent, it cannot be said that the duty was paid by the respondent "in pursuance of an order of assessment". The case of the respondent falls under the second category, i.e., "borne by him" contained in Section 27 ibid, according to which, since the duty incidence has been borne by the respondent, claiming of refund of such excess duty in terms of Section 27 ibid, in our view is in conformity with the statutory provisions. 7. The judgment of Hon'ble Supreme Court in the case of Priya Blue Industries Ltd. (supra) cited by Revenue in their ground....
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....al 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 choose 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. We, therefore, answer the question framed by 6. holding that the refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 and which claim will fall under clause (ii) of sub-section (1) of Section 27". 7. We also find that the Co-Ordinate Bench of the Tribunal in the case of C.C. (NS-III), JNCH, NHAVA SHEVA Vs. PHYSICAL RESEARCH LABORATORY has dismissed the Department's appeal by observing as under: "....
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....t by preferring a statutory appeal which was available, should this Court, ought to exercise its extraordinary jurisdiction. ... ... ... .... The petitioners though had statutory remedy of an appeal against the order of assessment, did not invoke that remedy, but instead directly filed the applications for refund. ... ... ... ... ... ... ... ... While dismissing the petition, the Court noted that where the party feels aggrieved by an order of the authority and has adequate alternative remedy which it may resort to and if it does not avail of that remedy, the High Court will require a strong case to be made for entertaining the petition in its writ jurisdiction... ... This Court in Wasp Pump Private Limited v. Union of India, 2008 (230) E.L.T. 405 (Bom.) in a case where the petitioner did not avail of the alternative remedy, but had alleged violation of the principles of natural justice and fair play, entertained the writ petition in spite of alternative remedy being available. This Court also noted that once there be notifications, even if attention of the respondents had not been drawn by the petitioners to those notifications, a duty was cast on the Assessing Officer to consid....