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TMI Blog2008 (9) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Bill of Entry dated 10-5-02, they received another consignment comprising spares covered by the same purchase order and of a value of US$ 1448.75. This amount was reflected in the invoice covering the second parcel of spares. The goods covered by this invoice was cleared on payment of duty of Rs. 39,390/-. As the invoice which accompanied the first parcel showed the value of all the spares covered by the purchase order and duty was paid on that value, duty paid on the consignment under Bill of Entry dated 25-6-02 was excess payment. The importer claimed refund of this amount. The original authority rejected the claim on the ground that the importer had not challenged the incorrect assessment of the Bill of Entry dated 10-5-02. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim was not maintainable when the assessee had not challenged the assessment order which had become final. In the instant case, in the absence of challenge to the assessment of the Bill of Entry dated 10-5-02, the excess duty paid following the assessment could not be allowed as refund pursuant to a claim filed by the importer. Ld. ]DR submits a copy of the decision of a Larger Bench of the Tribunal in CC (Imports) v. Eurotex Indus. Exports Ltd. - 2007 (216) E.L.T. 137 (Tri.-LB), which had held that a refund was not maintainable unless and until the assessment order in pursuance of which the duty had been paid was not challenged. 4. I have considered the case records and the submissions by both sides. From the records it is see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE v. Dhiren Chemical Industries (supra), revenue is bound to follow the instructions contained in the Circulars issued by the Board. In view of this position, not challenging the assessment pursuant to which the appellant paid excess duty cannot be held against the importer to disallow the claim. This position has been cited with approval by the Commissioner (A) in the impugned order. However, he found that the party had not made timely or other effort to furnish evidence to substantiate the claim of excess payment. The records also do not show that the lower authorities had examined the admissibility of the importer s claim from the angle of unjust enrichment. In the circumstances, the appeal is allowed by way of remand to the original ..... X X X X Extracts X X X X X X X X Extracts X X X X
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