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TMI Blog2016 (12) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 CE, the respondents preferred refund claim. The same was returned by the Assistant Commissioner observing that the refund cannot be claimed without challenging the assessment. The respondents filed appeal before the Commissioner (Appeals), who passed the impugned order remanding the matter to re-examine the refund claim. 3. In his order, the Commissioner (Appeals) held as under: "I have perused the records and various submissions made by the appellants. The question that is required to be considered is that whether a refund claim made would be considered without revising the assessment. By their Circular No. 24/2004-Cus dt. 18.03.2004, the CBEC issued instructions to the effect that in the light of CCE Vs Flock India Ltd., - 2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch person. The conditionality of such payment having been made pursuant to an order of assessment does not exist. Secondly, once an application is made under Section 27(1) of the Act, it is incumbent on the authority concerned to make an order under Section 27(2) determining if any duty or interest as claimed is refundable to the applicant. The proviso to Section 27(2) of the Act sets out the instances where refund should be paid to the claimant instead of being credited to the Consumer Welfare Fund. The only relevance as far as payment of duty under protest is concerned is indicated in the second proviso to sub-section (1) of Section 27 of the Act which states that the limitation of one year shall not apply in such event. In other words, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. The Assistant Commissioner (Refund), in the present case, appears to have not noticed the decision of this Court in Aman Medical Products Limited (supra) which was rendered in the context of Section 27 of the Act as it stood prior to 8th April, 2011. Further he failed to notice that the said provision has undergone a significant change with effect from 8th April, 2011. The impugned order of the Assistant Commissioner (Refund) rejecting the refund claim of the petitioner on the ground of maintainability was, for the aforementioned reasons, plainly erroneous." 5. Again, the Hon'ble High Court in the case of Yu Televentures Private Limited., Vs UOI 2016 (340) ELT 88 (Del) observed that merely because department has filed review petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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