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TMI Blog2015 (5) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... ied duties, would not be applicable to the present case. In the cases before the Apex Court, there was an assessment order levying duty which was not challenged. This is not the situation in the present case. In the present case, the assessment order was a nil assessment and no duties were levied and as such, the appellant cannot be said to be aggrieved by such order. In such circumstances, we find that the reliance by the Commissioner (Appeals) and CESTATE on the judgment of the Apex Court in the case of Priya Blue Industries Ltd. (2004 (9) TMI 105 - SUPREME COURT OF INDIA) is not justified in the present case. - appellant cannot be said to be aggrieved with the correctness of the order of nil assessment. The order sanctioning refund passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther submits that with regard to the second bill of entry dated 17/01/2007, the appellant has paid a sum of ₹ 2,24,369/-. Learned Counsel further points out that with regard to other bill of entry dated 02/03/2007, the appellant has paid a sum of ₹ 4,75,191/-. Learned Counsel further points out that all these amounts were paid by the appellant under protest. Learned Counsel further points out that by an order dated 14/12/2007 passed by the Assistant Commissioner of Customs Central Excise Anti Smuggling Unit, the amounts paid by the appellant under protest were ordered to be refunded to the appellant. Learned Counsel further points out that the respondent thereafter preferred an appeal against the said order before the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CESTAT Authorities have also taken note of the fact that in case the appellant desires to seek reasons for such assessment order, it was incumbent upon the appellant to pray for reasons for such orders. Learned Counsel further submits that the substantial question of law framed by this Court be answered in favour of the appellant. 4. Shri C.A. Fereira, learned Counsel appearing for the respondent has supported the impugned order. 5. Learned Counsel has pointed out that as the appellant has not challenged the assessment order, the question of seeking any refund would not arise. Learned Counsel further points out that the contention of Shri Ramani, learned Counsel for the appellant that there were no reasons given in the assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it was incumbent upon the authority to pass a speaking order giving reasons and as such, the question of seeking reason as claimed by the respondent would not arise. Hence, the contention of Shri Ferreira, learned Counsel for the respondent cannot be accepted. 9. With regard to the contention of Shri Ramani, learned Counsel for the appellant, we find that as the provisional assessment as well as the final assessment in respect of all the bills of entry were nil assessment, the question of raising a challenge to the said orders before the Appellate Authority would not arise at all. The appellant cannot be said to be aggrieved by the said orders and consequently, the question of filing any appeal would not arise. The judgment of the Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese 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 choose 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. 11. Considering the said observations and taking note of the facts of the present case, admittedly, the appellant cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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