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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 ..... was not charged in profit and loss account as expenses, rather it is show as Cess recoverable. Held That:- Clause (ii) under Section 27 does not apply as duty is paid by appellant in pursuance of order of assessment, thus appellant’s appeal on this point is rejected - There has been no accidental slip or omission - CVD duty was paid equivalent to cess as was understood by department as well as appellant thus Section 154 does not cover the case - no rectification of assessment order was ever sought by appellant – Matter already decided against appellant on first two issue thus Court does not find it necessary to discuss third issue i.e unjust enrichment – Decided against the assessee. - APPEAL NO. C/788, 789/04 - Final Order No. A/2763- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Keshari Steel Vs. Collector[2000(111) ELT 320], which was confirmed by the Honble Supreme Court on 1/12/1997 in SLP CC 8715/1997. He also relied on the case of Benet Coalman and Company Vs. Commissioner [2008(232)ELT 367] which held that assessment by the assessing officer resulting in payment of duty when the goods were exempted, is a case of sheer omission on the part of the assessing officer. As regards the unjust enrichment, the Ld. Counsel contended that they had submitted a Certificate from the cost accountant certifying that the amount of cess was not charged in the profit and loss account as expenses, rather it is show as Cess recoverable. 4. On the other hand, Learned A.R. appearing on behalf of Revenue states that applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; or (ii) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs We find that in the case of Aman Medical Products(Supra), it was held that 5. The Tribunal has referred to the cases of CCE, Kanpur v. Flock (India) Pvt. Ltd. [2000 (120) E.L.T. 285] and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive), 2004 (172) E.L.T. 145 (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 righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Industries Ltd. (supra) puts the issue beyond the doubt. The Supreme Court held that once the order of the assessment is passed and unless that order is reviewed under Section 28 or modified in appeal, that order stands and the officer considering the refund claim cannot stand in appeal over the assessment made by competent officers. We may respectfully observe that clause (ii) under Section 27 reproduced above does not apply in the present case because duty is paid by the appellant in pursuance of order of assessment, therefore appellants appeal on this point is rejected. 6.1. Coming to the second issue of time bar, we note the judgment of Apex court in Kirloskar Pneumatic Company(supra) in which it was held that The power confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid equivalent to cess as was understood by the department as well as appellant. It was after prolonged litigation culminating in the judgment by the Honble Supreme Court which settled the legal position that no cess is payable in respect of imported rubber. Therefore Section 154 which allows correction on account of clerical or arithmetical mistake or accidental slips or omission does not cover the present case at all. The fact in the case laws provided by the appellant, namely, Union of India Vs. Aluminium Industries Ltd. [1996(83) ELT 41(Ker.)], and Commissioner of Cus. (Import) Vs. Indian Farmers Fertilisers Co-op Ltd. [2009(243) ELT 687(Bom.)].do not help cause of the appellant. In the case of Indian Farmers Fertilisers Co-op Ltd(su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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