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TMI Blog2015 (9) TMI 1607X X X X Extracts X X X X X X X X Extracts X X X X ..... lenging the assessment. The refund claim should be considered on merit - If the refund is found to be admissible, it should be granted to the appellant only if the appellant discharges the burden of establishing that it had not passed on the burden to any person - appeal allowed by way of remand. - Appeal No. C/610/2009-CU[DB] [Arising out of Order-in-Appeal No. 19/CUS/APPL/DLH-IV/2009, dated 18.08.2009 passed by the C.C.E.(Appeals), Delhi-I] and Final Order No. 53108/2015 - - - Dated:- 23-9-2015 - G. Raghuram, J. (President) and R.K. Singh, Member (T) For the Appellant: Ashish Batra, Advocate For the Respondents: Suchitra Sharma, DR ORDER R.K. Singh, Member (T) 1. The appeal is filed against Order-in-Appeal dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere assessed on Final basis. As per the Apex Court's Order in the case of Commissioner of Central Excise v. Flock India 2000 (120) ELT 285 SC, it was held that once the Bill of Entry is finally assessed it reaches its eventuality and becomes an appealable order. Hence the refund claims in respect of above said Bills of Entry are not maintainable. 2. The appellant has contended that it had paid excess duty in as much as the goods (namely Isocyanate Millionate) assessed under CTH 2929 1090 were unconditionally exempt from duty in excess of 7.5% ad valorem under Notification No. 21/2002-CUS , dated 01.03.2002 as amended which it did not claim due to oversight and therefore in terms of the judgement of Delhi High Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court judgement in the case of Commissioner of Central Excise v. Flock India (supra) in effect held that when higher duties paid by inadvertence without taking benefit of a notification due to ignorance, refund claim can be filed subsequently without challenging the assessment order. In the light of the law laid down by the Delhi High Court in the case of Aman Medical Products Ltd. v. CC, Delhi (supra) the ratio of which is squarely applicable to the present case, we allow the appeal by way of remanding the case to the primary adjudicating authority with the following direction:-- (i) The refund claim should be considered on merit in the light of the judgement of Delhi High Court in the case of Aman Medical Products Ltd. v. CC, De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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