TaxTMI 
TaxTMI 
TaxTMI 
2025 (5) TMI 2011
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.... which were rejected by the Adjudicating Authority. On appeal the Ld. Commissioner (Appeal) allowed the refund claims by the Respondents. 4. Aggrieved from the said orders Revenue is before us on the ground that the adjudication orders were not challenged by the Respondents therefore, the refund claims are not maintainable. The Respondents also contested the issue and submits that as protest has been lodged by the Respondents at the time of payment of export duty, in that circumstances the assessment of shipping bills are not required to be challenged by the Respondents. In that circumstances the appeals are not maintainable. 5. Admittedly, in both the matters, the Respondents has paid the export duty under protest at the time of assessment of shipping bills. As duty has been paid under protest therefore, assessment of shipping bills was not final. In these terms the Respondents has rightly filed refund claim without challenging the provisional assessment. 6. Assessment is not final unless and until protest is removed. In that circumstances the Ld. Commissioner (Appeal) has rightly sanctioned the refund claims to the Respondent. Consequently, we do agree with the observation of ....
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....ent from the letter submitted by the appellant before the lower authority. This is not the case of the finalization of assessment of shipping bill but the case where the excess duty so paid by enhancing the base price and assessing the goods on WMT basis which requires finality in the form of order to be passed by the lower authority under Section 17 (5) of the Customs Act, 1962. The appellant vide letter dated 13.11.2017 not only request the lower authority for finalization of assessment in terms of its declaration at the time of export but also request for refund of the excess duty paid under protest in terms of Section 27 of the Customs Act, 1962. It is evident from the impugned order that the lower authority without giving any cognizance to the documents submitted by the appellant passed the order in haste and without giving any proper reasoning as to why the assessment of the said goods was done contrary to the declaration and not in terms of sales contract and BRC as submitted by the exporter in due course. The lower authority also lacks the reasoning in its impugned order as to why the refund claim of the appellant was rejected. The grounds given by the lower authority wh....
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.... the refund claims filed by the appellant. Appeals are disposed of in above terms." 18. Moreover, non filing of appeal against assessment of shipping bill did not deprive the assessee the right to file for refund against the wrongful assessment and excess duty so paid. The scope for grievance and filing of appeal being non-existent in the regime of self-assessment. Moreover, filing of refund claim itself is a challenge of the re-assessment as done by the lower authority for the said shipping bill involved in the impugned appeal. I find that in the case of Zenith 1125(Tri-Mum), Hon'ble CESTAT held as follows: "4.2. Another ground for denying the refund by the Commissioner (Appeals) is that the appellant have not challenged the assessment order and hence, they would not be eligible for refund of duty paid. We find that in the regime of self-assessment, the scope for grievance and filing of appeal is non-existent, as non-filing of appeal against the assessment of the Bill of Entry does not deprive the assessee the right to file refund as has been held by the Tribunal in the case of Commissioner v. Physical Research Laboratory-2016-TIOL-3037-CESTAT-MUM=2017 (357) ELT 475(Tri-Mum).....
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....ications 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 consider the said notification considering that he is the authority to assess if they were relevant for the purpose of assessment." The Hon'ble High Court has drawn attention to two aspects that would be relevant in the context of submissions made on behalf of Revenue. It has been made clear that even if the benefit of notificat....
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.... As far as the present case is concerned, there was indeed no assessment order as such passed by the customs authorities. Although under Section 2(ii) of the Act, the word 'assessment' includes a self-assessment, the clearance of the goods upon filing of the B/E and payment of duty is not per se an 'assessment order in the context of Section 27(1)(i) as it stood prior to 8th April, 2011, particularly if such duty has not been paid under protest. In any event, after 8th April, 2011, as noticed hereinbefore, as long as customs duty or interest has been paid or borne by a person, a claim for refund made by such person under Section 27(1) of the Act as it now stands, will have to be entertained and an order passed thereon by the authority concerned even where an order of assessment may not have reviewed or modified in appeal. 14. The Assistant Commissioner (Refund), in the present case, appears to have not noticed the decision of this Court in Aman Medical Products Limited (supra) which was rendered in the context of Section 27 of the Act as it stood prior to 8th April, 2011. Further he failed to notice that the said provision has undergone a significant change with effe....