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TMI Blog2018 (9) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Department and the assessed duty was paid by the respondent, it cannot be said that the duty was paid by the respondent in pursuance of an order of assessment. The case of the respondent falls under the second category i.e. borne by him contained in Section 27 ibid, according to which, since the duty incidence has been borne by the respondent, claiming of refund of such excess duty in terms of Section 27 ibid, in our view is in conformity with the statutory provisions. Appeal allowed - decided in favor of appellant. - Cus. Appeal No.75548/18 - Order No. FO/75361/2018 - Dated:- 31-5-2018 - Shri P. K. Choudhary, Judicial Member For the Appellant (s) : Shri H. K. Pandey, Advocate For the Respondent (s) : Shri S. K. Naska ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Commissioner of Customs (Export) New Delhi Vs. Lalit Kumar 2017 (358) 395 ( Tri Del) after considering the decision of Priya Blue Industries Limited (Supra), dismissed the appeal filed by the Revenue. The relevant portion of the said decision is reproduced below : 5. On perusal of the case records, we find that the refund application filed by the respondent on 25-5-2011, claiming refund of excess duty paid by it was returned by the Assistant Commissioner (Refund) under the cover of his letter dated 24-8-2011. Thereafter, the respondent had filed the appeal before the Commissioner (Appeals) on 12- 9-2011. Cause of action for filing appeal will not be considered as the date of assessment of the Bill of Entry inasmuch as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional duty of customs was paid by the respondent, since the benefit provided under notification dated 1-3-2006 was not claimed in the Bill of Entry. On the basis of information furnished by the respondent, since the Bill of Entry was assessed by the Customs Department and the assessed duty was paid by the respondent, it cannot be said that the duty was paid by the respondent in pursuance of an order of assessment . The case of the respondent falls under the second category, i.e., borne by him contained in Section 27 ibid, according to which, since the duty incidence has been borne by the respondent, claiming of refund of such excess duty in terms of Section 27 ibid, in our view is in conformity with the statutory provisions. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uant 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 found in between clauses (i) and (ii). The object of Section 27(i)(ii) is to cover those classes of cases, where the duty is paid by a person without an order of assessment, i.e. in a case like the present where the assessee pays the duty in ignorance of a notification which allows him payment of concessional rate of duty merely after filing a Bill of Entry. In fact, such a case is the present case in which there is no assessment order for being challenged in the appeal which is passed under Section 27(1)(i) of the Act because there is no contest or lis and hence no adv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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