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TMI Blog2010 (11) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms, CFS Ludhiana, the cargo did not match with the contents of the invoice and lot of earthen soil, rocks, dust was found inside these containers. At the appellant's request, photographs of the containers were obtained and videography was done so as to enable the appellant to stake their claim with the supplier. Thereafter the examination was re-started and side by side the process of segregation of HMS, re-rollable scrap and earthen soil was carried out. A physical examination report was prepared on 3-3-06 and as per the Chartered Engineer's report the scrap imported by the appellant was found to the extent of 39.160 MT (re-rollable scrap) and 7.875 MT (heavy melting scrap). The rest of the goods to the extent of 292.08 MT was found to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was deposited by the appellant in the good faith that the supplier has sent them the ordered goods. The excess duty deposit, in respect of the scrap which was never imported by them, was not liable to be paid. 5. The Revenue's contention that such excess deposit cannot be refunded to the appellant as the assessment order was not challenged cannot be appreciated. There is no 'lis' on any issue between the Revenue and the importer so as to require the importer to challenge the assessment order. It is undisputed fact that examination of the goods was done and a final report was prepared on 3-3-06 clarifying that the consignment contained mud, dust etc. to the extent of 292.08 MT. As such, it becomes evident that no scrap to the above ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2010 (251) E.L.T. 70 has held that the duty having been paid based on declared quantity and shortages having been detected subsequently on examination of the goods but prior to clearance of the same, refund of the excess deposit cannot be rejected on the ground that the assessment order was not challenged. For arriving at the above conclusion, Tribunal relied upon the Punjab & Haryana judgment in the case of Bansal Alloys & Metals Pvt. Ltd. v. CC, Amritsar reported in 2009 (240) E.L.T. 483 (P & H). The Hon'ble Delhi High Court in the case of United News of India v. Union of India reported in 2004 (168) E.L.T. 442 (Del.) held that payments in advance of import without assessment is not relatable to taxable event of importation and cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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