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TMI Blog2016 (1) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The appellants had issued final invoices and the quantity was revised on the basis of DMT, and the value was worked out accordingly. He submits that export duty should, therefore, he on the basis of this DMT quantity and on the value thereof. Hence, there is excess payment and they are entitled for refund of the same. 3. In addition to the above issue, the impugned orders also deal with the refund due to shortage of goods, and the refund of Education Cess and S.H. Education Cess, which were not leviable. Learned Counsel also submits that the Adjudicating Authority sanctioned refunds on these counts which was not disturbed by the Orders-in-Appeal. The other contentions of the learned Counsel are that the findings of the Commissioner (Appeals) in the Order-in-Appeal that the assessment of the shipping bills were not challenged and therefore they are not eligible for refund is raised by the Commissioner (Appeals) for the first time, and the concerned decision of the Hon'ble Supreme Court has been distinguished by the Hon'ble Delhi High Court in the case of Aman Medical Products Limited vs. Commissioner of Customs, Delhi - 2010 (250) ELT 30 (Del.) wherein the Hon'ble Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the same in the shipping bills and other documents and should have claimed provisional assessment or brought the same to the notice of the Customs officers/ department. The learned Authorised Representative argues that they have failed to do so and assessments were finalised. As per the decisions of the Hon'ble Supreme Court, if the assessment is finalised, refund claim cannot be entertained without challenging the assessment order. He relies upon the decisions of the Honble Apex Court in Collector of Central Excise vs. Flock (India) Pvt. Limited - [(2000) 6 SCC 650], Priya Blue Industries Limited vs. Commissioner of Customs (Preventive) - [2004 (172) ELT 145 (SC)], and the recent decision in the case of Commissioner of Customs, Bangalore vs. BPL Telecom Limited [2015 (325) ELT 467 (SC)], wherein the Apex Court reiterated the decisions in Flock (India) Pvt. Limited and Priya Blue Industries Limited. The learned AR submits that the refund which was sanctioned by the lower authorities was on the shortage noticed at the time of clearance of the goods, as is evident from the noting on the reverse of the shipping bills wherein the actual quantity exported has been mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of duty payable was assessed. The Petitioners paid the duty under protest. They then filed a Claim for refund of Rs. 79,64,648/- on the ground that duty had been wrongly levied. Their refund was rejected on 30th August, 2000. The Appeal filed by them was rejected on 31st October, 2001. The further Appeal filed before the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) was dismissed by the Tribunal on 28th May, 2002. The Tribunal followed the judgment of this Court in the case of Collector of Central Excise v. Flock (India) Pvt. Ltd. reported in (2000) 6 SCC 650. The Tribunal held that as no Appeal had been filed against the Assessment Order the refund claim was not maintainable. The Civil Appeal filed before this Court was dismissed by our Order dated 14th November, 2003. 3. As it has been contended that the provisions of the Customs Act, 1962 are not in pare-materia with the provisions of the Excise Act and that the Judgment of this Court in Flock (India)'s case (supra) would not be applicable, notice was issued. 4. We have heard parties at great length. 5. Under Section 27 of the Customs Act, 1962 a claim for refund can be made by any person who had (a) p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in Appeal or reviewed a claim for refund can be maintained." 6. We find that the Hon'ble Apex Court has taken a consistent view on the said issue as is reflected in the decisions of the Court in the case of Flock (India) Limited (supra), Priya Blue Industries Limited (supra) and in the recent case of BPL Telecom Limited (supra). The Hon'ble Supreme Court held in the said case as; "Though initially dispute arose about classification of the goods in question, viz., equipments pertaining to setting up of VSAT terminals used in television broadcasting, that was decided and on that basis, the respondent herein filed application for refund. This refund application was rejected by the Deputy Commissioner of Customs vide his orders dated 31-7-2000. 2. Against this order of the Deputy Commissioner, the assessee filed the appeal. It appears from the reading of the orders dated 18-5-2006 [2006 (201) E.L.T. 503 (Tribunal)] passed by the Customs, Excise and Service Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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