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TMI Blog2014 (9) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... ver those cases where the duty is paid by a person without an order of adjudication, as in the present case where the appellant paid excess duty in ignorance of the Notification, which allows it to pay concessional rate of duty, merely after filing a bill of entry. Thus the appeal is allowed with consequential benefits. The appellant is entitled to refund of duty, excess paid, as per provisions of Noti. No. 23/02. - Refund allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ority on the grounds that as the appellant has not challenged the order of assessment, rejected the refund claim. The said order was upheld by the commissioner (Appeals). Aggrieved by the impugned order, appellant is before this Tribunal. 4.1 The learned counsel appearing on behalf of the appellant contends that the refund claim cannot be rejected on the ground that appellant had not challenged the original assessment order and therefore, appellants are not entitled to re-open the assessment orders. The further states that both of the judgments on which the lower authorities had relied i.e. Coll. of Cus. Ex. Kanpur v/s Flock (India) [2000 (120) ELT 285 (SC)] and M/S Priya Blue Industries Limited v/s Comm. of Cus. [2004 (172) ELT 145 (SC)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) M/s Sesa Goa Ltd. v/s Comm. of Central Excise, Goa. - [2010 - - 1729 - CESTAT, Mum.] Accordingly the counsel urges for setting aside the impugned order with appropriate relief. 5. The learned AR, appearing on behalf of the department reiterates the finding in the impugned orders. Further reliance is placed on the ruling in Super Cassettes India Ltd v/s C.C. - 2003 (162) ELT 1148 (Tri.), wherein pursuant to assessment under sec. 17, refund claim was filed as the assessee was entitled to concessional rate of duty. The Tribunal held that the Commr. (Appeals) was right in rejecting refund, following the principle laid down in Flock India Ltd. (Supra). 6. Heard both the parties. 7. Having considered the rival contentions, relying on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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