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TMI Blog2004 (9) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of India imported one runway road marking machine under Bill of Entry dated 28-11-96 which was cleared by them on payment of duty as per rate prescribed in the Customs Tariff; that Notification No. 36/96-Cus., dated 23-7-1996 (Serial No. 143) exempts navigation, communication, air traffic and landing equipments from payment of Customs duty in excess of 25% and full additional Customs duty provided Airport Authority of India produces a certificate from the Directorate General of Civil Aviation that such equipment is required to be used in the modernization of Airport facilities; that the Directorate General of Civil Aviation had issued a certificate dated 19-11-1996 and accordingly appellants were eligible for the benefit of the exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be passed as the assessment was done by the Department as claimed by the appellants in Bill of Entry, that the Larger Bench of the Tribunal in the case of Faxtel Systems (India) Pvt. Ltd. v. CC - 2004 (169) E.L.T. 265 (T) has not expressed any view on the contention taken by the appellant that if it is only a mere assessment of Bill of Entry without a Lis involved, the ratio of Flock (India) will not be applicable . He mentioned that in view of the observation of the Larger Bench of the Tribunal the issue in the present matter is distinguished. [13]4.The learned Consultant has relied upon the decision in the case of Bengal Tools Ltd. v. CC, Calcutta - 2003 (56) RLT 331 wherein the Tribunal after noting the Supreme Court s deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en made and the same has not been challenged by the assessee, it is not open to them to challenge the said assessment order by filing a refund claim; that the Supreme Court in the case of Flock (India) (supra) has clearly held that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an 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 the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not been challenged by the appellants. The appellants have subsequently filed the refund claims claiming the benefit of exemption notification issued under the Customs Act. The similar facts were considered by the Tribunal in the case of Kopran Limited. The Tribunal in the said decision after considering the decisions of the Tribunal in the case of Khemka Travels v. CC - 1992 (57) E.L.T. 458 and CC, Mumbai v. Hari Co. - 1997 (92) E.L.T. 518 (T) has held that order of assessment on a Bill of Entry is an appealable order against which appeal is required to be filed if a party is aggrieved by the same and as no appeal has been filed by them, the appellants cannot claim refund as held by the Supreme Court in the case of Flock (India) (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll of Entry by way of appeal, the appeal filed by the assessee has been dismissed by the Supreme Court as reported in 2004 (165) E.L.T. A77. We also observe that the Larger Bench of the Tribunal in the case of Faxtel Systems (India) Pvt. Ltd., (supra) has referred to the decision of the Tribunal in the case of Super Cassettes Industries Ltd. v. CC, Kolkata - 2003 (162) E.L.T. 1148 (Tribunal) = 2003 (57) RLT 291 (CESTAT) wherein also the duty was paid by the appellants as per the assessment on Bill of Entry without any protest and later on they have filed refund claim on the ground that goods were entitled for concessional rate of duty in terms of Notification No. 345/86-Cus. dated 16-6-86. The Appellate Tribunal following the decision in Fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lopment Corporation Limited (supra) wherein the Tribunal has held that the appellants in this case may be an authority within the meaning of Article 12 of the Constitution of India, but certainly it cannot be Government. The reason is that it is only owned by the State Government and it is nothing but a statutory body. Therefore, the longer period of limitation of one year is not available to the appellant . Thus, following the ratio of these decisions, we hold that M/s. Punjab Health Systems Corporation Limited is not Government and therefore the refund claim filed by them beyond the period of six months are hit by time-bar stipulated under Section 27(1)(a) of the Customs Act. Accordingly, both the appeals are rejected. (Pronounced on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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