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TMI Blog2010 (9) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... adjusted - In the case of Hind Agro Industries Ltd. Vs. Commissioner of Customs reported in (2007 -TMI - 3234 - DELHI HIGH COURT) in support of his contention that since no cess was payable, question of processing a claim of refund of cess in terms of Customs Act does not arise since payment was made mistakenly - Accordingly the impugned orders are set aside and appeals allowed - C/343-352/09 & C/153/10 - Order No. A/1644-1654/WZB/AHD/2010 - Dated:- 29-9-2010 - MRS. ARCHANA WADHWA, MEMBER (J) and MR. B.S.V. MURTHY, MEMBER (T) Shri S.R. Dixit, Adv. for the Appellant. Shri R. Nagar, SDR for the Respondent. Per: MR. B.S.V. Murthy: The appellant importer had imported coal in bulk form under various B/Es, from time to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the fact, despite being pointed out, that the refund was not being claimed on account of finalization of assessment, but on account of the differential duty demand being dropped alongwith consequential relief, vide OIO dt.26.12.07. (ii) While the appellant did not appeal against the purported finalization of assessment, even the department did not appeal against such OIO dt.26.12.07 dropping coal cess demand and granting consequential relief. The impugned order has completely brused aside this crucial aspect. (iii) The whole issue of whether finalization was challenged by the appellant or not has become totally academic, in as much as while whatever be the final assessment, once duty demand itself stands dropped alongwith consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrect legal as also factual position, therefore deserves to be quashed and set aside, alongwith consequential relief, if any, to the appellant. The refund cannot be denied and/or recovered from the appellant for the same reasons. 5. Learned DR on behalf of Revenue submitted that the facts remains that the final assessment issued by the Superintendent has not been challenged till date. Therefore the lower authorities cannot be found fault with for the action taken. 6. We have considered the submissions made by both the sides. We find that the procedure followed by the Revenue for finalization of provisional assessment is totally irregular. The finalization of assessment should have been done by giving the details of bills of entry such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Delhi in the case of Hind Agro Industries Ltd. Vs. Commissioner of Customs reported in 2008 (221) ELT 336 (Del.) in support of his contention that since no cess was payable, question of processing a claim of refund of cess in terms of Customs Act does not arise since payment was made mistakenly. The Hon ble High Court held that refund application made within a period of three years after discovery of mistake is not barred by limitation. However we cannot consider this decision since such relief can be given only by the High Court or the Supreme Court and this Tribunal being a creation of statute cannot go beyond the statute. However we have already held that the appellants cannot be found fault with for not filing appeal against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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