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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 ..... he imported goods. The appellants have stated that the imported goods were captively consumed. They filed a refund claim for excess duty amounting to Rs. 43,40,276/-. The Asst. Commissioner of Customs, Central Refund Cell, JNCH returned the same vide letter dated 05.06.2006 (F.No. S/12-Misc-25/2005 CRC/JNCH) on the ground that a refund claim is not maintainable when the assessee did not challenge the assessment order, which became final. It maintained that ratio of the Supreme Court s decision in CCE vs. Flock (India) Pvt. Ltd. 2000 (120) ELT 285 (SC) would apply even to customs cases and that the Hon'ble Supreme Court in the case of Priya Blue Inds. 2004 (172) ELT 145 (SC) has held that once an order of assessment is passed, the duty w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee the refund can be processed even without challenging the assessment order of the bill of entry. In this regard, he placed reliance on the following judgement:- * Mecon Ltd. 2003 (153) ELT 574 (Tri-Kolkata) * Hindustan Petroleum Corpn. Ltd. 2003 (156) ELT 425 (T) * Goa Shipyard Ltd. 2007 (219) ELT 888 (Tri-Mum) 3. Shri S.J. Sahu, Asstt. Commissioner (AR), appearing on behalf of the revenue reiterates the findings of the impugned order. he further submits that the original authority has rightly returned the refund on the ground that refund is not maintainable as the assessment of the bill of entry was not challenged. The issue is settled by the Supreme Court in the case of Flock (India) (supra) and Priya Blue Inds. (supra). There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund claim itself amounts to challenge to assessment. Filing a request for refund is required to be made as per Section 27 of the Customs Act. Hence separate appeal against assessment not required to be filed. ii) In the case of Hindustan Petroleum Corpn. Ltd. (supra), the Tribunal held as under:- "4.We have considered the submissions made by both the sides and are of the considered view that when a refund claim is filed by the assessee by not accepting the classification and rate of duty, etc., mentioned in the bill of entry, such refund claim is entertainable because the assessment also gets challenged by filing such refund claim. Therefore, by respectfully following the judgments rendered by the Apex Court in the matter of Karnataka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund of any duty- (i) paid by him in pursuance of an order of assessment; or (ii) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs - (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year. (b) in any other case, before the expiry of six months, from the date of payment of duty and interest, if any, paid on such duty in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. 5. The Tribunal has referred to the cases of CCE, Kanpur v. Flock (India) Pvt. Ltd. [2000 (120) E.L.T. 285] and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive), 2004 (172) E.L.T. 145 (S.C.). In both these cases, referred to by the Tribunal there was an assessment order which was passed and consequently it was held that where an adjudicating authority passed an order which is appealable and the party did not chose to exercise the statutory right of 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 on the ground that adjudicating authority had committed an error in passing his order. These judgments will therefore not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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