2018 (4) TMI 597

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..... r remanded to the original authority viz Deputy Commissioner of Customs (Refund) to examine the merits of the matter - appeal allowed by way of remand.
SHRI C J MATHEW, MEMBER (TECHNICAL) Appearance: Shri R Krishnan, Advocate for appellant Shri MK Mall, Assistant Commissioner (AR) for the respondent Appellant, M/s Avery Dennison Pvt Ltd, is in appeal against rejection of refund claim as upheld by Commissioner of Customs (Appeals - II), Mumbai - II vide order-in-appeal no. 358(CRCI)/ 2017/(JNCH)-Appeal - II dated 9th June 2017. 2. The issue relates to anti-dumping duty paid by the appellant as per notification no. 79/2010-Cus dated 30th July 2010 on import of 'PVC flex film' declared as 'self adhesive PVC film' which, according to t .....

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..... ), Mumbai - I [2014 (314) ELT 425 (Tri.- Mumbai)] v. Commissioner of Customs & Central Excise, Goa v. Narayan Bandekar & Sons Pvt Ltd [2010 (252) ELT 417 (Tri.Mum)]; vi. Aman Medical Products Ltd v. Commissioner of Customs, Delhi [2010 (250) ELT 30 (Del.)]; vii. Micromax Informatics Ltd v. Union of India [2016 (335) ELT 446 (Del.)] 5. It is seen from the decision of the Hon'ble High Court of Delhi in re Aman Medical Products Ltd that" '4. If therefore we refer to language of Section 27, it is more than clear that the duty which is paid is not necessarily pursuant to an order of assessment but can also be 'borne by him'. Clauses (i) and (ii) of sub-section (1) of Section 27 are clearly in the alternative as the expression 'or' is f .....

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..... ding that the refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 and which claim will fall under clause (ii) of sub-section (1) of Section 27. 7. We accordingly set aside the impugned order dated 3-4-2008 of the CESTAT [2008 (228) E.L.T. 593 (Tri.-Del.)] and uphold the order of the Commissioner of Customs (Appeals) dated 28-1-2005 and remand of the matter to the original authority viz Deputy Commissioner of Customs (Refund) to examine the merits of the matter in accordance with law after providing due opportunity to the appellant.' 6. For t .....

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