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TMI Blog2016 (9) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... mentary evidence - Department is also at liberty to examine the aspect of unjust enrichment - matter remanded - appeal allowed - decided in favor of appellant. - Appeal No. C/75252/2014 - Order No. FO/A/75886/16 - Dated:- 23-8-2016 - Shri H. K. Thakur, Member (Technical) Shri Sukhendu Bhattachryyar, Adv, Shri R. N. Bandopadhyay Consultant for the Appellant Shri K. C. Jena, ADC (AR) for the Revenue ORDER Per Shri H. K. Thakur This appeal has been filed by the appellant against OIA No. 258/CUS(Apprg.)/KOL(P)/2013 dt 19/1/11 passed by Commissioner (Appeals) Strand Road, Kolkata as first appellate authority. 2. Sh. Sukendu Bhattacharya (Advocate) Sh. R. N. Bandopadhyay (Consultant) appeared on behalf of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that re-assessment was sought for after 5 months where as the appeal period against any assessment order is 3 months. That as per the following case laws filing an appeal against the assessed bill of entry is not necessary appellant can challenge the assessment by a refund application :- (i) CC (I G) New Delhi Vs Prima Telecom Ltd. [2011 (266) ELT 386 (Tri.-Del)] (ii) E. I. Dupond India Ltd Vs CC (Import) Mumbai [2015 (330) ELT 405 (Tri.-Mumbai)]. (iii) Akzo Nobel Coating India Pvt Ltd. CC (Sea), Chennai [2014 (312) ELT 91 (Tri.-Chennai)]. (iv) Secure Meters Ltd Vs CC, New Delhi [2016 (333) ELT 303 (Tri.-Del)]. 2.1. That by virtue of letter dt 26/29-8-11 Appellants letters dt 21/7/11 12/9/11 the request f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue in the invoices issued by the supplier as compared to the contracted rate in the purchase order is not being disputed by the department. He also noticed that the supplier of the goods has submitted a written apology vide their letter dated 10-1-2005. They had also sent revised invoices. The payment to the overseas supplier is as per purchase order and in terms of the revised invoices. He also observed that the adjudicating authority has not disputed or challenged the above fact. He, accordingly, allowed the appeal by observing as under :- From the above it is clearly established that it is a case of omission covered under section 154 of the Customs Act 1962. Section 154 of the Customs Act 1962 empowers the proper officer of the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly, reject the appeal filed by the Revenue. 4.2. Similarly in the case of Akzo Nobel Coating India Pvt Ltd Vs CC (Sea) Chennai (Supra), while remanding the case CESTAT Chennai made following observations in Para 10:- 10. We are of the view that the facts of this case are similar to the facts in the case of Aman Medicals (supra) which decision is given after considering the decision of Hon. Apex Court in the case of Priya Blue Industries Ltd. Therefore against the Hon. Delhi High Court in Aman Medical Products (supra) we hold that these refund claims cannot be rejected on the ground that the assessment order was not appealed against. We hold that if appellant is able to prove by producing proper documents that there was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962. We find that same view was also taken by the Hon ble Delhi High Court in the case of Aman Medical Products Ltd. v. CC, Delhi (supra), wherein the Hon ble High Court held that for the purpose of filing refund, the assessment order is not required to be challenged when higher duty was paid due to inadvertence. In this case higher duty has been paid due to wrong application of exchange rate which was due to clerical error. We, therefore, hold that before filing of the refund, it was not required for the appellant to challenge the assessment order and, as such, the judgment of the Apex Court in the case of Priya Blue Industries Ltd. v. CC (Preventive) (supra) is not applicable to the facts of this case, and therefore, the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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