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TMI Blog2016 (9) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants imported 8 consignments of ferrite magnets and filed 8 Bills of Entry. However, there was no claim of benefit of exemption notification NO. 12/12-Cus dated 17.3.2012 in the said Bill of Entry filed by the respondents, which were assessed by the proper officer without extending the benefit of said notification. 3. Subsequent to the clearance of goods, the respondents relied that they have not claimed benefit of said notification which unconditionally exempts all items covered under list 21 from whole of duty of customs and accordingly, filed a refund claim of Rs. 6,76,165/-. 4. The said refund claim was rejected by Deputy Commissioner on the sole ground that the assessed Bill of Entries have not been put to challenge by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification in question. It is only subsequently the assessee filed the refund claim. The original adjudicating authority, inspite of examining the applicability of the said notification, rejected the refund claim on the sole ground that the assessment order was not put to challenge. We find that the scenario in the present appeal is identifiable to the facts of Aman Medical Products judgment. 7. When the said order in original of the Deputy Commissioner was put to challenge before Commissioner (Appeals), the appellate authority observed that denial of refund claim on the sole ground of not having challenged the assessed Bill of Entry, is not proper inasmuch as there was no lis between two on account of non-claiming of notification. He al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund claim is not maintainable. Supreme Court in this case has clearly propounded that once an order of assessment is passed the duty would be payable as per that order unless the order of assessment has been reviewed under section 28 and /or modified in an appeal that Order Stands. So long as the order of assessment stands the duty would be payable as per that order of assessment. A refund claim is not an appeal proceeding. It further observed that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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