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TMI Blog2017 (12) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier period. Further, the appellant had also represented the authorities regarding its claim for the exemption benefit. Thus, the appellant's case should fall in the second alternative provided in clause (ii) in Section 27 ibid, i.e. 'borne by him'. On perusal of some of the sample copies of Bills of Entry available in the case file, we find that the same were assessed by the proper officer on 19.02.2009, without extending the benefit of notification dated 24.02.2005, as claimed for by the appellant, which has resulted in payment of excess amount CVD by the appellant. It is an admitted fact on record that the authorities below have not adhered to the request of the appellant, in passing the order(s), negating the claim of entitlement for the CVD exemption as contemplated under the notification dated 24.02.2005. Thus, under the circumstances of the present case, it has to be construed that filing of refund claim by the appellant itself, is to be considered as challenge of the assessment of Bills of Entry, which is detrimental to its claim. Whether, the ratio of judgment of Hon'ble Supreme Court in the case of Priya Blue Industries [2004 (9) TMI 105 - SUPREME COURT OF INDIA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties of modernization of existing terminals, constructing new terminals, runway etc., and providing other facilities to cater to the increased traffic at the Airport. For executing the assigned task, the appellant awarded the sub-contract for the construction of a new terminal 3, the runway and associated works to M/s. Larsen Toubro Ltd., who in turn, assigned certain job to the major sub-contractor M/s. Yongnan Engineering Construction (PTE) Ltd., Singapore. For executing the assigned job, M/s L T imported various goods from M/s. Youngnan, including the goods in question i.e. Pre Fabricated Steel Structures (Girders). The said goods were sold by M/s. L T on high seas sale basis to the appellant. 1.2 The first lot of such goods were imported by the appellant during the period 02.08.2008 to 17.11.2008 under 30 Nos. of Bills of Entry. The appellant had claimed the exemption from payment of Additional Duty of Customs (CVD) under Notification No.3/2005-CE dated 24.02.2005. At the time of assessment, the Customs authorities allowed the CVD exemption to the appellant in terms of the said Notification. However, based on audit objection, the Customs Department issued the demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise, Kanpur vs. Flock (India) Pvt. Ltd.- 2000 (120) ELT 285 (S.C.) and Priya Blue Industries Ltd. vs. Commissioner of Customs (Preventive) 2004 (172 ELT 145 (S.C.). 2. Being dissatisfied with the impugned order dated 23.08.2011 passed by the ld. Commissioner of Customs (Appeals), New Delhi, the appellant has preferred this appeal before the Tribunal. 3. Shri Alok Yadav, the ld. Advocate appearing for the appellant made the following submissions in support of the case of the appellant:- (a) It was incumbent upon the authorities below to apply the test of admissibility of the exemption notification no. 03/2005-CE dated 24.02.2005 and thereafter, to assess the refund claim, instead of rejecting the same outright. He has placed reliance on the judgement of Hon'ble Punjab Haryana High Court, in the case of Bansal Alloys Metals Pvt. Ltd. - Vs. - C.C., Amritsar - 2009 (240) ELT 483 (P H). (b) The first appellate authority has failed to appreciate that when the proper officer has not considered/extended the benefit of the relevant notification at the time of assessment, it is always open for the importer to seek re-assessment of the goods, which has preci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gement and order dated 01.04.2010 of the Hon'ble Supreme Court [reported in 2010 (250) ELT A57 (S.C.)] to state that special leave has been granted against the judgment of Hon'ble Delhi High Court in the case of Aman Medical Products (supra). Thus, he submitted that the Hon'ble Supreme Court judgment takes precedence over the judgment of the High Court, accordingly, the later judgment cannot be relied on to decide the present appeal. 5. Heard both sides and examined the case records. The following issues arise for consideration by the Tribunal for resolving the dispute:- (a) Whether, challenge or contest of the assessment order is condition precedence for claiming the refund of duty, especially in view of the fact that the duty was paid under protest, for non-consideration of the request of appellant for extending the benefit of Notification No. 3/2005-C.E., dated 24.02.2005 by the authorities below, before assessment of the Bills of Entry. (b) Whether, the ratio of judgment of Hon'ble Supreme Court in the case of Priya Blue Industries (supra) and Flock (India) Pvt. Ltd. (supra) can be applied in the case of the appellant, in denying the refund benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of assessment; or borne by him. 8. We note that in the letter dated 18.02.2009, addressed to the Deputy Commissioner of Customs, New Delhi, the appellant had specifically mentioned the facts and the issues regarding its claim for entitlement to the exemption benefit provided under the Notification No. 3/2005-C.E., dated 24.02.2005. The appellant had also stated that, in the event, its request of CVD exemption is not acceded to, then it will pay the CVD amount 'under protest', reserving its right to claim refund under the provisions of the Customs Act, 1962. On perusal of some of the sample copies of Bills of Entry available in the case file, we find that the same were assessed by the proper officer on 19.02.2009, without extending the benefit of notification dated 24.02.2005, as claimed for by the appellant, which has resulted in payment of excess amount CVD by the appellant. It is an admitted fact on record that the authorities below have not adhered to the request of the appellant, in passing the order(s), negating the claim of entitlement for the CVD exemption as contemplated under the notification dated 24.02.2005. Thus, under the circumstances of the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at such application is maintainable under Section 27 of the Act. Similarly, the ratio laid down by Hon'ble Supreme Court in the case of Flock (India) Pvt. Ltd. (supra) is not applicable to the facts of this case inasmuch as, in the said decided case an adjudication order was passed, which was appealable under the Central Excise statute, but the party aggrieved did not choose to exercise the statutory right of filing an appeal against such order. Thus, the Hon ble Supreme Court held that 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 the adjudicating authority had committed an error in passing his order. Contrary is the situation in the present case inasmuch as, the authorities below have not passed any speaking order in response to the claim of the appellant that it is entitle for the CVD exemption, provided under notification No.3/2005-CE dated 24.02.2005. Hence, the judgement in Flock (India) Pvt. Ltd. (supra) is distinguishable. 11. It is seen that, as already noted, almost similar dispute was considered by the Hon ble Delhi High Court in Aman Medical Products ..... X X X X Extracts X X X X X X X X Extracts X X X X
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