2009 (9) TMI 41

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....d an appeal against the 'order' by which he had deposited the duty on filing of the bill of entry. In other words, the assessee contends that in the present case no 'order' has been passed because the assessee simply filed the bill of entry and paid the customs duty in mistake without taking the benefit of the notification No. 6/2002 dated 1.3.2002 due to ignorance. The Customs Excise and Service Tax Appellate Tribunal (CESTAT) has passed an order holding that 'in pursuance to an order of assessment necessarily implies that a payment of duty must be pursuant to an assessment order before a refund in appeal can be asked for under Section 27 of the Customs Act, 1962 (hereinafter referred to as 'the Act') 2. We have therefore admitted the a....

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....tion to which such refund is claimed was collected from, or paid by, him and the incidence of such [duty and interest, if any, paidon such duty] had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excise and Customs Laws (Amendment) Act, 1991, such application shall be deemed with in accordance with the provisions of sub-section (2)" 4. If therefore we refer to language of Section 27, it is more than clear that the duty which is paid is not necessarily pursuant to an order of assessment but can also be 'borne by him'. Clause (i) and (ii) of sub-section (1) of Section 27 are clearly in the alternative as the expression 'or' is found in bet....