2006 (2) TMI 459

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..... entry. Subsequently they came to understand that S.A.D. was not payable on the goods imported by them and hence they filed the refund claim before the authorities. The adjudicating authority rejected the refund claim on the ground that the appellants did not challenge the assessment of bill of entry, and hence, refund claim cannot per se challenge the assessment and assessment has become final. On appeal the Commissioner (Appeals) also concurred with the findings of the adjudicating authority. Hence, this appeal. 3. Learned Advocate appearing for the appellants submits that this case is covered by the decision of the Karnataka Power Corporation Ltd. v. C.C. (Appeals), Chennai, reported at 2002 (143) E.L.T. 482 (S.C.). It is the submissio .....

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..... en to the appellant is to file an appeal against the said assessment and contest the whole bill of entry, in spite of that the appellants preferred refund claim which indirectly sought open the assessment of bill of entry which has already attained finality having assessed by a proper officer. 6. The 3 Member Bench of the Hon ble Supreme Court in the case of Karnataka Power Corporation Ltd. (supra) has come to the conclusion in that case, on a question of fact, that after the assessment of bill of entry the appellants therein had sought re-assessment of their goods by writing a letter to the Asst. Commissioner of Customs. Since the letter was not attended to by the authorities the Hon ble Supreme Court came to the conclusion that the Trib .....

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..... d become redundant as the Appeal proceedings would never be over within that period. It was submitted that in the claim for refund the party could take up the contention that the Order of Assessment was not correct and could claim refund on that basis even without filing an Appeal. 6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) s case (supra). Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal p .....

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