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TMI Blog2012 (10) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to re-submit the same, after re-classifying the PCI Coal under Chapter Heading 27011910. The Appellant resubmitted the said Bill of Entry vide their letter dated 22.10.2008 after doing the needful on 23.10.08. Subsequently, the Bill of Entry was assessed provisionally under Customs Chapter Heading 27011910 @5% BCD, 2% Education Cess and 1% S.H.Education Cess amounting to Rs.3,48,57,562/- on 27.10.08. The Appellant paid the duty on 04.11.2008 under protest. The Bill of Entry was finally assessed on 09.03.10 after submission of necessary documents by the Appellant. Consequent upon final assessment they submitted a refund application for Rs.3,48,57,562/- vide their letter dated 02.04.10. The lower authority rejected the refund claim while relying upon the Hon ble Supreme Court s decision in the case of Priya Blue Industries Ltd.reported in 2004(172) ELT 145, wherein it was held that if the assessment is not challenged by filing any appeal, the refund claim made under Section 27 would not be maintainable. The Appellant challenged the same before the learned Commissioner (Appeals) who in turn upheld the lower adjudicating authority s Order and rejected the appeal filed by the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly, the Appellant was requested to re-submit the application after final assessment of the Bill of Entry. After 1 and = years from the date of payment of duty under protest by the Superintendent, vide his letter dated 10.03.2010 by way of intimation to the Appellant that the Bill of Entry has been assessed finally. The said communication has been purportedly construed by the Department as the assessment order . The lower Adjudicating Authority vide his Order dated 24.09.10 rejected the refund claim, while relying upon the Hon ble Supreme Court s decision in the case of Priya Blue Industries Ltd. vs. Commissioner [2004(170) A308(SC)]. The learned Commissioner (Appeals) upheld the Order of the lower Adjudicating Authority. The contention is that a conjoint reading of Sections 2(34), 3 and 4 of the Customs Act, 1962, reveals that the Superintendent of Customs is neither an officer of Customs nor the CBEC has delegated the power to any officer of Customs to appoint Superintendent for the purpose of discharging the functions especially in the matter of assessment. Therefore, the letter dated 10.03.10 of the Superintendent of Customs conveying that the Bill of Entry has been fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment. The contention is that the assessment includes provisional assessment as per Section 2 of the Customs Act, 1962. Therefore, the Appellant ought to have filed an appeal against the provisional assessment, as they intended to, which is clear from the aforesaid letter dated 03.11.2008. Moreover, the learned Commissioner has confirmed by his letter dated 29.02.2012 that the Bill of Entry was finally assessed, as communicated to the Appellant on 10.03.10. If they could not file any appeal against the provisional assessment, nothing prevented them to file against the final assessment. Thus it is very much clear that the Appellant did not file any appeal against the assessment order and accordingly, the refund claim was rejected, while relying upon the Hon ble Supreme Court s decision in the case of Priya Blue s case(supra), which held that if the assessment is not challenged, filing of appeal, the refund claim made under Section 27 would not be maintainable. The judgement of the learned Supreme Court in the case of Priya Blue (supra) is totally applicable to this case in view of the following three similarities namely the initial assessment was on the higher side, contrary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record. It is not in dispute that the bill of entry was assessed provisionally and the Appellant have enhanced the value and paid the duty under protest with a liberty to file an appeal against the provisional assessment. As per Section 2(2) of the Customs Act, 1962, the assessment includes as under: Section 2. Definitions.- (1) (1A) . (1B) .. (2) assessment includes provisional assessment, reassessment and any order of assessment in which the duty assessed is nil; (3) Undisputedly, the Appellant did not file any appeal against the provisional assessment order nor against finally assessed Bill of Entry. The Hon ble Bombay High Court in the case of Karan Associates (supra) had categorically held that in case of non-filing of appeal against an assessed bill of entry, even in absence of a speaking order relating to assessment of the Bill of Entry, refund of excess duty is not maintainable. Their Lordships held that even if no reasoned Assessment Order has been passed, the ratio laid down by the Hon ble Apex Court in the case of Priya Blue Industries Ltd.(supra) would still be applicable, and accordingly, upheld the decision of the Tribunal in the said case. Their Lordshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order, the recourse open to him is to file an appeal before the appellate forum instead of asking for refund directly by shortcircuiting the process of appeal prescribed to be followed under the Act, before the appropriate authority. We agree with the learned AR that the principle of law laid down in Aman Medical s case (supra) cannot be made applicable as an universal principle of law, as an SLP filed by the Revenue against the said judgement is admitted by the Hon ble Apex Court to decide the case. Hence, the said judgement of the Hon ble Delhi High Court is in jeopardy in view of the principle of law laid down by the Hon ble Apex Court in West Coast Paper Mills case (supra). Their Lordships at paras 38 and 39 in the case of West Coast Paper Mills (supra) observed as - 38. In the aforementioned cases, this Court failed to take into consideration that once an appeal is filed before this Court and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy. The subject matter of the lis unless determined by the last Court, cannot be said to have attained finality. Grant of stay of operation of the judgment may not be of much relevance once this Court g ..... 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