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TMI Blog2011 (4) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh, JJ. Appearance: Shri Anil Balani, Advocate, for appellant Shri Manish Mohan, Authorised Representative (SDR), for respondent Per: P.G. Chacko These appeals filed by the assessee against a common order of the Commissioner (Appeals) seek refund of certain excess amounts of duty paid by them, without the bar of unjust enrichment. The appellant had imported second-hand machinery. The declared value was not accepted by the assessing authority, which enhanced the value of the goods for the purpose of levy of duty. The duty assessed was paid by the assessee under protest. Subsequently, as many refund claims as there were bills of entry were filed by the party, which were rejected by the original authority. Aggrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel, submits that the substantive issue in this appeal is squarely covered in favour of the Revenue by the Tribunal's Larger Bench decision in the case of CC, Nhava Sheva vs. Eurotex Indus. Exports Ltd. 2007 (216) ELT 137 (Tri.-LB), wherein it was held that a refund claim was not maintainable unless the assessment order in pursuance of which the duty paid was challenged and modified/set aside. An excerpt from para 5 of the Tribunal's order, relied on by the SDR, is given below:- "Further in Paragraph 70 of the Mafatlal decision, Supreme Court has observed that where a duty has been collected under a particular order which has become final, the refund of duty cannot be claimed unless the order (whether it is an order of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced any copy of the show-cause notice. It appears from the orders of the original authority that that authority justified the enhancement of value of the goods and rejected the refund claims on merits. The impugned order passed by the Commissioner (Appeals) indicates that the assessee had not challenged the assessment orders and hence the refund claims were not maintainable. The appellate authority also noted that the protest expressed by the assessee at the time of payment of duty was relevant only to time-bar. The appellate order further indicates that time-bar was not an issue before the appellate authority. 5. We are also not impressed with the argument of the learned counsel that the assessing authority ought to have passed speaking ..... X X X X Extracts X X X X X X X X Extracts X X X X
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