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TMI Blog2017 (11) TMI 1532X X X X Extracts X X X X X X X X Extracts X X X X ..... is in narrow compass, the appeals are taken up for final disposal. 3. Heard the ld. AR and perused the records. On perusal of the records, I find that the ld. Commissioner (Appeals) has dismissed the appeals filed by the appellant on the ground that as the assessment of bills of entry has attained finality as the same was not been challenged by the appellant, therefore, the refund claims filed by the appellant are not maintainable. I find that it is an admitted fact that while assessing the bills of entry, the duty has been paid by the appellant and the same has been borne by the appellant. In that circumstance, in the light of the decision of Hon'ble High Court in the case of Aman Medical Products Limited Vs. Commissioner - 2010 (250) EL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation of one year shall not apply where any duty or interest has been paid under protest : Provided also that where the amount of refund claimed is less than rupees one hundred, the same shall not be refunded. Explanation. - For the purposes of this sub-section, the date of payment of duty or interest in relation to a person, other than the importer, shall be construed as the date of purchase of goods by such person. (1A) .... (1B).... (2) If, on receipt of any such application, the Assistant Commissioner of Customs or Deputy Commissioner of Customs is satisfied that the whole or any part of the duty and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a person can now claim refund of any duty or interest as long as such duty or interest was paid or borne 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed thereon by the authority concerned even where an order of assessment may not have reviewed or modified in appeal." Therefore, following the precedent decisions of the Hon'ble Delhi High Court in the case of Aman Medical Products Limited (supra) and Micromax Informatics Limited (supra), I hold that the lower authorities cannot dismiss the refund claims merely on the ground that assessment of bills of entry has not been challenged by the appellant and therefore the refund claims are not maintainable. In that circumstance, by setting aside the impugned order, the matter is remanded back to the adjudicating authority to consider the refund claims filed by the appellant and to decide the same on merits without entertaining the issue that ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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