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TMI Blog2017 (6) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... very well decided the eligibility of N/N. 21/02 instead of returning the refund claim - reliance was placed in the case of COLLECTOR OF CENTRAL EXCISE, KANPUR Versus FLOCK (INDIA) PVT. LTD. [2000 (8) TMI 88 - SUPREME COURT OF INDIA], where it was held that the refund in respect of the duty paid on their own by the assessee can be claimed u/s 27 particularly when there is no lis between the assessee and the department. The refund is not liable to be denied on the basis that the assessment of bill of entry was not challenged - matter remanded for reconsideration for the claim of refund - appeal allowed by way of remand. - Appeal No. C/513/07 - A/87550/17/SMB - Dated:- 30-5-2017 - Shri Ramesh Nair, Member ( Judicial ) Dr. J. Arthur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) who rejected the appeal. Therefore, the appellants are before me. 2. Dr. J. Arthur Prem, ld. Consultant appearing on behalf of the appellants submits that the appellants was legally entitled for the exemption 21/02 (Sr. No. 477). There is no dispute about the eligibility of the said notification therefore there was no lis between the appellant and the department. Accordingly, they are entitled for the refund of excess duty paid by them at the time of clearance of the goods. He submits that firstly, the Asstt. Commissioner, without following the principle of natural justice returned the refund application. Secondly, he has also given a finding that the refund is not admissible in view of the Supreme Court judgment in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll of entry filed in respect of clearance of high density polyethylene, neither the appellants claimed the exemption notification 21/02-Cus nor the department has pointed out at the time of assessment of bill of entry. As per the appellants, they are entitled for the exemption notification. Accordingly they have paid excess duty. In the order of the sanctioning authority as well in the order of the Commissioner (Appeals) there is no dispute raised about the eligibility of the exemption notification. This shows that there is no lis between the department and the appellants as regards the eligibility of the concessional duty in terms of exemption notification 21/02. Even when the appellants have filed the refund claim the Asstt. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating authority for processing the refund claim as it is not necessary that the assessment should have been challenged by filing appeal against the assessment because the refund claim itself is a challenge to the assessment order passed by the department. We therefore, set aside the impugned order and remand the matter to the lower adjudicating authority to decide the issue in the light of the aforesaid judgments after giving reasonable opportunity to the assessee to put forth their defence. Ordered accordingly. In the case of Aman Medical Products Ltd. 2010 (250) ELT 30 (Del) wherein the Hon'ble High Court of Delhi passed the order as under :- 2. We have therefore admitted the appeal and framed the following questions of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excise and Customs Laws (Amendment) Act, 1991, such application shall be deemed with in accordance with the provisions of sub-section (2). 4. If therefore we refer to language of Section 27, it is more than clear that the duty which is paid is not necessarily pursuant to an order of assessment but can also be borne by him . Clauses (i) and (ii) of sub-section (1) of Section 27 are clearly in the alternative as the expression or is found in between clauses (i) and (ii). The object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 and which claim will fall under clause (ii) of sub-section (1) of Section 27. 7. We accordingly set aside the impugned order dated 3-4-2008 of the CESTAT [2008 (228) E.L.T. 593 (Tri.-Del.)] and uphold the order of the Commissioner of Customs (Appeals) dated 28-1-2005 and remand of the matter to the original authority viz Deputy Commissioner of Customs (Refund) to examine the merits of the matter in accordance with law after providing due opportunity to the appellant. 6. It can be seen from the above judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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