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TMI Blog2016 (3) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for the Respondent. 2. The above Appeal challenges the Order dated 15.10.2009 in Appeal no. C-1140/2008 passed by the Customs Excise and Service Tax Appellate Tribunal, Mumbai. Upholding the Order dated 16.07.2008. 3. The Appeal was admitted by an Order dated 13.07.2010 on the following substantial question of law : Whether the Appellate Tribunal was right in holding that the claim for refund of cost recovery charges was not maintainable as a refund claim on account of failure of the appellant to prefer a appeal against the demand inasmuch as before issuing notice of demand, there was no adjudication made by any authority as regards the liability of the appellant to pay the cost recovery charges? 4. Briefly, the facts of the case are that the Appellants are engaged in the manufacture of sea-going vessels and imported capital goods/equipments like gear boxes, steering system and navigational, life and sound equipments for use in the manufacturing process and were granted licence bearing no. 01/04 dated 27.01.2004 which was renewed up to 31.12.2007 under Sections 58 and 66 of the Customs Act, 1962 for deposit of the imported dutiable goods in a private bonded wareh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the Judgment of the Tribunal to point out that the learned Tribunal has erroneously assessed the material on record to come to an erroneous conclusion. Learned Counsel has thereafter taken us through the relevant provisions of the Customs Act to point out that the application for refund was maintainable as there was no speaking Order assessing the amounts payable by the Appellants. Learned Counsel has relied upon the Judgment of the Apex Court reported in AIR 1962 SC 1314 in the case of Sir Chunilal V. Mehta sons Ltd. vs. Century Spinning and Manufacturing Co. Ltd. Learned Counsel has further submitted that the Appellants sent a letter, inter alia, stating that the excessive amounts were paid towards the cost recovery based on a demand by the Respondents which the Assistant Commissioner by Order dated 03.03.2008 came to the conclusion that the cost recovery charges were rightly paid. Learned Counsel further pointed out that the said Order was challenged under Section 128 of the Customs Act, 1962 wherein the learned Commissioner found that the Appellant has a strong case on merits as no costs recovery was due for the period when no Officer was posted at the warehouse, but, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be in such form and shall be verified in such manner as may be specified by rules made in this behalf. 8. On plain reading of the said provisions, a decision or Order passed under the Act, can be challenged by filing an Appeal before the Commissioner of Appeals. When such an Appeal is preferred, the ground for challenge is quite vast as both the questions of law and facts can be examined in such substantial Appeals which is provided under the statute. Unless and until such Order is set aside, it would be in operation as it is not the case of the Appellants that such Order is void ab initio. The Judgment of the Apex Court reported in 2000 (120) E.L.T. 285 (S.C.) in the case of Collector of Central Excise, Kanpur vs. Flock (India) Pvt. Ltd., observes at para 10 thus : 10. Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecisions of the Apex Court in the case of Flock (India) Pvt. Ltd. (supra) and Priya Blue Industries Ltd. (supra) that so long as the assessment order stands the question of granting refund does not arise at all. 8. The argument of the appellant that unless an appealable speaking order is passed, the importer cannot file an appeal against the assessment order is without any merit. Assessment order passed on the bill of entry is an appealable order and the same can be challenged even in the absence of a speaking order. In other words, in the absence of a speaking order, it cannot be said that the assessment order is not appealable. Where an assessment order is passed without giving reasons and in spite of repeated requests reasoned order is not passed, proceedings can be initiated for setting aside the assessment order passed on the bill of entry. In the present case, save and accept writing letters no proceedings have been initiated for setting aside the assessment order. Therefore, the fact that the assessing officer has not passed a speaking order would not entitle the appellant to claim partial refund of duty paid as per the assessment order. 9. Strong reliance was plac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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