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TMI Blog2015 (11) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... urt held that Cess is not payable on the imported rubber. Therefore appellant filed refund claim on 4/9/2003 against duty already paid by them. Asstt. Commissioner held that the refund is not admissible because (i) the assessment made on the Bills of Entry were appealable and had attained finality, no appeal having been filed. (ii) In some cases the refund were time barred and (iii) all cases were hit by unjust enrichment. Ld. Commissioner (Appeals) upheld the order of the Asstt. Commissioner. 3. It is the plea of the Ld. Counsel that in terms of the Delhi High Court judgment in case of Aman Medical Products Ltd. Vs. CCE[2010(250) ELT 30 (Delhi)], refund claims are admissible when there is no assessment order on dispute as in the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood Ltd. Vs. Commissioner [2007-TIOL-894-CESTAT]. As regards the time bar aspect, he stated that in the case of Union of India Vs. Kirloskar Pneumatic Company[1996(84) ELT 401(S.C.)] it was held that Customs Authority could not be directed to ignore or act contrary to Section 27 of the Customs Act. Lastly on the aspect of unjust enrichment, he stated that CA certificate has been submitted well after the order in appeal rejecting the refund application. 5. We have carefully considered the facts and submissions made by both sides. 6. On the first issue as to whether refund application is maintainable without review of the assessment, appellant have relied on the case of Aman Medical Products Ltd (Supra). This judgment dealt with refund clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bill of entry presented by the appellant was signed, signifying approval by the assessing officer. That itself is an order of assessment in such a situation. We are, therefore, not prepared to agree that there is no order of assessment in this case, and therefore, the limitation prescribed in Section 27 did not begin to run. Section 27 is emphatic in language. It says that an application for refund of duty shall be made before the expiry of six months from the date on which the duty was paid. In the face of this provision, the authorities under the Act, including the Government of India, had no option but to dismiss the appellant's application. This is also the view taken by this Court in Madras Rubber Factory v. Union of India [1983 (13) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the High Court clothing the authorities with its power under Article 226 or the power of a civil court. No such delegation or conferment can ever be conceived". The appellant seeks to take shelter behind the provisions of Section 154 of the Customs Act. Section 154 is reproduced below:- SECTION 154. Correction of clerical errors, etc. Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be. It is sought to be argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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