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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 ..... ng the process of appeal prescribed to be followed under the Act, before the appropriate authority. Appeal filed by the Appellant is dismissed. - CUSTOMS APPEAL NO.C/174/2011 - Final Order No. A-431/KOL/2012 - Dated:- 5-7-2012 - SHRI S.K.GAULE, DR. D.M.MISRA, JJ. SHRI S.K.MOHANTY, ADVOCATE FOR THE APPELLANT(S); SHRI B.B.AGRAWAL, A.R.(COMMR.) FOR THE REVENUE. Per Shri S.K.Gaule Heard both sides. 2. The Appellant filed this Appeal against the Order-in-Appeal No. 25/CUS/BBSR-I/2011 dated 14.02.2011, whereby the Commissioner (Appeals) upheld the lower Adjudicating Authority s Order and rejected the Appeal filed by the Appellant. 3. Briefly stated facts of the case are that the Appellant filed a Bill of Entry No.000757 dated 14.10.2008 for import of 48592 MT of Century PCI Coal(Century Semi Soft Coking Coal) of Australian origin by classifying the same under Chapter Heading 27011910 of the Customs Tariff Act, 1975 and claiming the benefit of exemption Notification No.21/2002-Cus. dated 01.03.2002 (as amended). The Customs Authorities returned the Bill of Entry to the Appellant to re-submit the same, after re-classifying the PCI Coal under Chapter Heading 2701 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification. The contention is that the said action of provisional assessment is not in line with Section 18 of the Customs Act, 1962. In support of their contention, they have placed reliance on the Hon ble High Court of Madras in the case of Manickam Enterprises [2002(140) ELT 16(Mad.)], wherein it was held that when statute provides for provisional assessment, the same has to be done as provided under law and not according to whims and fancies of department. The contention is that the change in classification and the duty structure by the Superintendent of Customs unilaterally, was brought to the notice of the lower Adjudicating Authority; however, the same were completely ignored in the Adjudication Order. The detailed representation submitted by the Appellant was not considered by the Superintendent nor by the Assessing Authority and they paid the provisionally assessed duty under protest. Subsequently, they lodged the refund claim. The Customs Authorities returned the refund application on the ground that the Bill of Entry has not been received in the refund section after final assessment and accordingly, the Appellant was requested to re-submit the application after final as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2010(250) ELT 30], wherein the Priya Blue s case (supra) has been distinguished and wherein the Hon ble High Court has held that refund claim of duty paid is not necessarily pursuant to an order of assessment, but can also be borne by the Appellant. 5. Learned AR(Commissioner) appearing for the Department at the outset pointed out that it is clear from pages 50 and 52 of the Appeal Book that the Bill of Entry was assessed provisionally, pursuant to at least two rounds of discussions in the Deputy Commissioner s chamber. Further, from the last two sentences, it is also clear that the Bill of Entry was initially returned to the Appellant and thereafter, they have submitted that revised classification. Therefore, it is incorrect on the part of the Appellant to contend that classification was corrected/changed on the Bill of Entry by the Department. The contention is that from the letter dated 03.11.2008 at page 54 of the Appeal Book, also it is clear that not only they paid the enhanced duty (under protest) but in the letter they also reserved their right to file an appeal against the provisional assessment. The contention is that the assessment includes provisional assessment as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Appeal has extensively quoted, and in which the Hon ble Bombay High Court has not once, but thrice emphasized that even in the absence of a speaking order under Section 17(5) of the Customs Act, the assessment on the Bill of Entry is itself appealable. Admittedly, the provisional assessment done in this case was also an assessment and therefore, it was appealable and ought to have been appealed against. They even said they would, but they did not. Not having done so, the refund is not maintainable. The contention is that as regards the CBEC s Manual which was issued in the year, 2001 as a compendium of the various instructions earlier prevailing. It cannot be interpreted to preval even after delivery of the Hon ble Supreme Court s decision in Priya Blue in 2004 and the Hon ble Bombay High Court s decision in Karan Associates in 2009. In any case, Board s instructions, if contrary to law, are not binding upon the Hon ble Tribunals and Courts, as was held by the Hon ble Supreme Court in the case of Ratan Melting [2008(231) ELT 22 (SC)]. 6. We have carefully considered the submissions and perused the record. It is not in dispute that the bill of entry was assessed provisionally and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gatived by this Court in Flock (India) s case (supra). Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order. 8. The aforesaid principle laid down by the Hon ble Apex Court is clear and unambiguous. The basic philosophy denying refund without challenging an Assessment Order, as held by the Hon ble Apex Court, rests on the principle that the proceedings of refund and filing of appeal against an assessment order are two separate proceedings and the scheme under the Act meticulously provides relief to the assessee, when the assessment order is not acceptable to him. It provides that when an assessee is aggrieved by the assessment order, the recourse open to him is to file an appeal before the appellate forum inst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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