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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 ..... n 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 notice dated 17.12.2008, directing the appellant to deposit the differential amount of CVD, denying the exemption. In response to such notice, the appellant deposited the CVD amount under protest. Payment of such duty is not the subject matter of the present dispute. 1.3 Subsequently, the second lot of girders were imported by the appellant between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. 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 precisely been done by the appellant, inasmuch as, while filing refund claim, it had requested for re-assessment and the refund of the amount, that would flow as a consequence thereof. Further, he also stated that filing of refund claim, itself is challenge of assessment order. In this milieu, he relied on the judgement of Hon'ble Supreme Court, in the case of Karnataka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 to it. 6. Denial of refund claim, in this case, is under Section 27 of the Customs Act, 1962. The statutory provision, existed at the material time, reads as under: "Section 27. Claim for refund of duty. - (1) Any person claiming refund of any duty and interest, if any, paid on such duty - (i) paid by him in pursuance of an order of assessment; or (ii) borne by him, may mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption 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 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. In this context, this Tribunal in the case of Aditya Birla Nuvo Limited (supra) and Jindal Vijayanagar Steels Ltd. (supra) has also endorsed our said views. 9. It is pertinent to note here that the request made by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling 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 Ltd. (supra). The High Court observed as follows:- "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 autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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