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TMI Blog2017 (11) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... dran, Member (Judicial) Sri Y. Srinivasa Reddy, Advocate for the Appellant Shri B. Guna Ranjan, Superintendent/AR for the Respondent ORDER [Order Per : Mr. M.V. Ravindran] 1. This appeal is directed against Order-in-Appeal No: HYD-CUS-000-APP-044-16-17, dated 20.06.2016. 2. Very briefly, the facts of the case are that appellant sought clearances of imported consignment of polished marbles under six bills of entry and discharged duty as indicated on EDI system; noticing they are eligible for benefit of exemption under notification No. 12/2015 and paid excess duty, they filed a letter dated 06.07.2015 for grant of excess amount paid as refund which was summarily disposed of by the Asst. Commissioner of Customs stating that the bills of entry has been finally assessed, hence the same cannot be considered. On an appeal, the first appellate authority has recorded that assessent of the imports which were made during the period July October 2014, has attained finality and as the appellant has not challenged the same as per the provisions of Customs Act, 1962, the dismissal/rejection of the refund claim of the appellant seems to be in order. 3. Ld. Counsel s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are 'already assessed'. According to the Assistant Commissioner, once the assessment order was passed, duty was payable in terms thereof and unless such assessment order was reviewed under Section 28 of the Act or modified in an appeal. Relying on the decisions of the Supreme Court in Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) - 2004 (172) E.L.T. 145 (S.C.) and Collector of Central Excise v. Flock (India) (P.) Ltd. - 2000 (120) E.L.T. 285 (S.C.) it was held that a refund claim contrary to the assessment order was not maintainable unless the assessment order was reviewed or modified in appeal. 6. This Court has heard the submissions of Mr. Tarun Gulati, learned counsel for the petitioner and Mr. Satish Kumar, learned counsel for the Customs. 7. It requires to be noticed that the decision in Priya Blue Industries Ltd. v. Commissioner of Customs (Prevention) (supra) was rendered by the Supreme Court in respect of Section 27 of the Act as it stood prior to 8th April, 2011. Factually the said decision does not apply to the facts of the present case since the said decision notes at the outset that the petitioners have imported a ship fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) that the assessee was entitled to maintain the refund claim notwithstanding that there was no appeal filed against the assessed B/Es. 11. It is significant that with effect from 8th April, 2011, the structure of Section 27 of the Act has undergone a change. The relevant portions of Section 27, as amended with effect from that date, read as under : 27. Claim for refund of duty. - (1) Any person claiming refund of any duty or interest, - (i) paid by him; or (ii) borne by him, may make an application in such form and manner as may be prescribed for such refund of to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest : Provided that where an application for refund has been made before the date on which the Finance Bill, 2011 receives the assent of the President, such application shall be deemed to have been made under sub-section (1), as it stood before the date on which the Finance Bill, 2011 receives the assent of the President and the same shall be dealt with in accordance with the provisions of sub-section (2) : Provided further that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne by such 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, whether or not the duty is paid under protest once an application for refund is made in the requisite manner and form as prescribed, it is incumbent on the authority to deal with such an application. Where there is an assessment order, the authority will take it into account in deciding the application for refund. If such assessment order has been reviewed or modified in appeal such further order will obviously be taken into account. In ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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