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TMI Blog2013 (10) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout saying that refund flows from an order. So long as an order of assessment stands, the duty assessed would be payable as per the said order of assessment. If that order is not challenged, no refund can be claimed. The officer empowered to consider different claims for refund cannot review the order of assessment for which right of appeal has been created under the statute. In the instant case, as held above, no order of assessment as contemplated under Section 17(2) read with Section 17(5) has been passed. Therefore, there is no question of filing any appeal challenging the order of assessment. Assuming that the petitioner has not filed any appeal challenging the provisional assessment order, he cannot be deprived of his statutory right to challenge a final assessment order. When an assessee is aggrieved by the assessment order, the recourse open to him is to file an appeal before the appellate forum instead of asking for refund directly by short-circuiting the process of appeal prescribed to be followed under the Act, before the appropriate authority. Proper officer directed to pass a speaking order in terms of Section 17(2) read with Section 17(5) of the Act, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Custom's custody for the intended purpose, the appellant had no option, but to pay the provisional assessed duty under protest on 04.11.2008. Subsequent to payment of the duty under protest, the appellant has lodged the refund claim. In the application for refund, the detailed justifications were furnished in favour of classification of imported coking coal under Chapter 27011910 instead of 27011990. The said refund application was returned by the Customs Department under the cover letter dated 04.02.2009 stating that the B/E has not been received in the refund section after final assessment and accordingly, the appellant was requested to re-submit the application after final assessment of the B/E. After lapse of more than 1 years from the date of payment of duty under protest, the Customs Superintendent (Import) vide letter dated 10.03.2010 had informed the appellant that the B/E has been assessed finally. Consequent upon resubmission of the refund application, the Assistant Commissioner of Customs has issued a show-cause notice dated 02.08.2010, proposing for rejection of the refund application. The refund application filed by the appellant has been rejected vide refund order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly assessed under Section 18(1 )( a) of the Act as some documents were wanting. Thereafter, it has been finally assessed under Section 18(2) of the Act, 1962. Placing reliance on the order and entries made on different dates, Mrs. Padhi submitted that the Deputy Commissioner has taken decision on the basis of materials available on record. The Superintendent has been reporting to the Deputy Commissioner for his approval at every step. The change of classification was made by the Deputy Commissioner himself as Proper and Competent Officer and all the notings were placed before him for his approval. Mrs. Padhi further referring to Section 17 of the Act submitted that under Section 17(5) of the Act, 1962 when the testing or examination under Sec. 17(2 )is contrary to the claim of the importer regarding valuation, classification, exemption and the importer does not confirm his acceptance of the said assessment in writing, the proper officer shall pass a speaking order. It is further submitted that Section 18 of the Act, 1962 provides for procedure of provisional assessment of duty. Where the proper officer is satisfied that an importer is unable to produce any document/information nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, Mrs. Padhi also relied upon a decision of the Hon'ble Supreme Court in the case of Collector of Central Excise, Kanpur vs. Flock (India) Pvt. Ltd., C-7, Panki Industrial Area, Kanpur, (2000) 6 SCC 650 . It was further submitted that the order-sheet goes to reveal that the proper officer i.e. Deputy Commissioner after perusal of the relevant documents and on being satisfied endorsed the note of the Superintendent. Hence, the letter of the Superintendent, who is an officer of the Customs and the proper officer for assessment of duty, on 10.3.2010 communicated the decision of the Deputy Commissioner regarding Final Assessment under Sec. 18(2) of the Act. A refund application is not maintainable without challenging the provisional assessment or the final assessment in appeal. The scope under refund application or on an appeal arising out of a refund application is limited. The refund granting authority cannot sit in appeal on the validity and legality of an assessment order, be it provisional or final. He can only examine whether any refund is due from an assessment or not. Concluding her argument Mrs. Padhi prayed for dismissal of the appeal. 7. On the rival contentions of bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be ascertained. The proper officer may also require importer or exporter or any other person to furnish any information required for such ascertainment which is his power to produce or furnish and thereupon the importer, exporter or such other person shall produce such document and furnish such information. Sub-section (4) provides that imported goods or export goods may, prior to the examination of testing thereof, be permitted by the proper officer to be assessed to duty on the basis of the statements made in the entry relating thereto and the documents produced and the information furnished under Section (3). However if it is found subsequently on examination or testing of the goods or otherwise that any statement in such entry or document or any information so furnished is not true in respect of any matter relating to the assessment, the goods may, without prejudice to any other action which may be taken under this Act, be reassessed to duty. Sub-section (5), provides that where any assessment done under sub-section (2) is contrary to the claim of the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed provisionally by the Custom House, Paradeep . While provisionally assessing the B/E, the classification of imported goods has been changed from 27011910 to 27011990 and the duty liability from Nil to 5%'. As it appears the benefit of notification dated 01.03.2002 as claimed by the appellant has not been extended to it. 11. It is not the case of respondent-department that after completion of the provisional assessment order, any regular/final assessment order has been passed as provided under Section 17 of the Act. On the contrary, referring to letter dated 10.03.2013, Mrs. Padhi submitted that bill of entry No.666757 dated 14.10.2008 previously assessed provisionally pending submission of original documents, demurrage certificates, bank signed invoices and test result and has been assessed finally under Section 18(2) of the Customs Act, 1962. 12 This further shows that no regular/final assessment as provided under Section 17 of the Act has been passed. Section 18(2) does not contemplate of passing any final order of assessment by the Department. Section 18(2) envisages that when the duty leviable on the imported goods or export goods is assessed finally by the Proper Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein it is stated that the bill of entry No.000757 dated 14.10.2008 was finally assessed on 09.03.2010 and was also communicated to the party on 10.03.2010. Photocopy of the said bill of entry and the communication letter to the party are enclosed to the said letter. For proper appreciation of the case, it is necessary to reproduce the said letter. GOVERNMENT OF INDIA MINISTRY OF FINANCE , DEPARTMENT OF REVENUE OFFICE OF THE DEPTY COMMISSIONER CUSTOMS, CUSTOMS HOUSE PARADEEP. C. No.VIII-CUS-48 (12) PDP/2009 Dated : 10.03.10 To M/s Visa Steel Limited, 11, Edamra Kanan , Nayapalli , Bhubaneswar -751015. Dear Sir(s), This is to here by inform you that the Bill of Entry No.000757 dated 14.10.2008 previously assessed provisionally, pending submission of Original Documents, Demurrage Certificates, Bank signed Invoice Test Result has been assessed finally under Section 18(2) of he Customs Act, 1962. Consequent upon finalization of the under mentioned B/E, the Deputy Commissioner, has been pleased to redeem the related P.D. Cum Test Bond and finalize the said B/E as detailed below : Sl. No. B/E No. Date Description of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of assessment. 17. Section 128 of the Act, 1962 envisages for filing of appeal before the Commissioner (Appeal) by any person aggrieved by any decision or order passed under the Customs Act by any officer of Customs lower in rank than a Commissioner of Customs within 60 days from the date of communication to him of such decision or order. In the present case, no speaking order as contemplated under Section 17(2) read with Section 17(5) of the Act, assessing the appellant finally has been passed and communicated to the appellant. In absence of such order, there is no question of filing any appeal challenging the assessment order in terms of Section 128 of the Act. Consequently, the appellant is deprived of the statutory right of filing appeal as provided in Section 128 against the collection of duty from it without passing final order of assessment as contemplated under Section 17(5) of the Act. 18. Assuming that the petitioner has not filed any appeal challenging the provisional assessment order, he cannot be deprived of his statutory right to challenge a final assessment order. 19. In view of the above, we do not find any infirmity or illegality in the order of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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