9911796707
TMI Blog2014 (1) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to a mistake in understanding the unit price declared. Bills of Entry No.118656 dt. 28-06-2012, 11930 dt. 01-07-02 and 12493 dt. 08-07-02 for home clearance of the said goods were filed. The appellant states that in these Bills of Entries also similar mistakes were made in declaration of unit price and the total price of goods that were being declared under each Bill of Entry. The goods were cleared on payment of duty and later the appellant detected the mistake and they filed refund claim on 26-12-2002 for Rs. 25,71,648/-. Refund application was rejected by the Asst. Commissioner on the ground that the appellant did not produce the required documents to prove the mistake and for the reason that the appellant did not appear for personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Hon'ble Delhi High Court in the case of Aman Medical Products Ltd. Vs CC Delhi - 2010 (250) ELT 30 (Del.) wherein it has been clarified by the Hon'ble High Court that the decision of the Hon'ble Apex Court in the case of Priya Blue Industries (supra) is applicable only in a situation where there was a lis between the department and the importer at the time of import and the dispute was adjudicated either through the assessment of Bill of Entry or through issue of speaking orders in which cases refund claim under section 27 would not be maintainable without challenging the assessment order. The High Court has held that in para 4 of the order that in situations like the present dispute, refund under Section 27 of the Customs Act will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is nothing in the order which would suggest that a patent mistake which was not adjudicated upon could not be rectified through the refund mechanism under section 27 of the Customs Act. In fact in that case the assessees refund claim was rejected on the ground that the claim was filed beyond the time limit prescribed and not for the reason that the order was not challenged under section 128. There is nothing in this decision which is contrary to the decision of the Delhi High Court in the case of Aman Medicals (Supra). 9. Thereafter we have considered CCE Vs. Flock (India) Pvt. Ltd-2000 (120) E.L.T. 285 (S.C.). That decision was in the matter of Central Excise levy. In that case there was a dispute between the assessee and the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the present case there was no dispute between the appellant and the Department at the time of import but an assessment was done based apparently on wrong figures which both sides did not notice. By processing the refund claim there is no review of an adjudication done earlier because no dispute was adjudicated by the assessment order. The fact that the appellant could have challenged the assessment under section 128 of the Customs Act cannot be a reason to deny processing of a refund claim if filed within the four corners of the provisions under section 27 of Customs Act. 9. In the case of Aman Medicals (Supra) the assessee filed the bill of entry and paid the customs duty in mistake without taking the benefit of the Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (S.C.). In both these cases, referred to by the Tribunal there was an assessment order which was passed and consequently it was held that where an adjudicating authority passed an order which is appealable and the party did not chose to exercise the statutory right of appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that adjudicating authority had committed an error in passing his order. These judgments will therefore not apply when there is no assessment order on dispute/contest, like as is in the facts of the present case. 10. We are of the view that the facts of this case are similar to the facts in the case of Aman Medical ..... X X X X Extracts X X X X X X X X Extracts X X X X
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