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2018 (12) TMI 799

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..... SHRI P.K. CHOUDHARY The facts of the case in brief are that the appellants are manufacturer of fertilizer products classifiable under Chapter 31 of the First Schedule to the Central Excise Tariff Act, 1985 and for that imported Rock Phosphates of Jordan origin from an overseas Supplier M/s. Jordan Phosphate Mines Limited, Amman and Jordon on the basis of the memorandum of agreement. They got some rebate on CTR price on account of higher moisture and Silica contained in the imported Rock Phosphate and reduction of freight on account of subsequent changing in freight rate. The appellant filed different claims on reduction of freight in respect of the impugned Bills of Entry, which is mentioned below:- SI No. Appeal No. Bill of Entry No. Date Refund claim amount (in Rs.) 01. C/77033/2018 6335058 11/08/2016 31,298/- 02. -do- 6335063 11/08/2016 54355/- 03. C/77034/2018 8001197 28/12/2016 4,10,104/- 04. C/77035/2018 3695450 23/12/2015 3,49,890/- 05. -do- 4316468 19.02.2016 1,22,941/- 06. -do- 4534557 10/03/2016 1,15,721/- 07. -do- 4661812 21/03/2016 2,14,440/- 08. -do- 4766478 31/03/2016 2,38,814/- 09. -do- 4884707 12/04/2016 1,21,899/ .....

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..... ty has been conveyed in the letter dated 24-8-2011, it can be concluded that the said letter is only detriment to the interest of the respondent, against which the appeal was preferred before the Commissioner (Appeals). Appeal against the said letter having been filed within a period of sixty days from the date of its communication in our opinion, there is no delay in filing appeal before the ld. Commissioner (Appeals). Thus, we do not find any merits in the contention of Revenue that filing of appeal before the Commissioner (Appeals) is barred by the limitation of time. 6. Section 27 ibid provides the modalities and procedures for claiming refund of Customs Duty. The said provision mandates that duty paid in pursuance of an order of assessment or borne by the importer, can claim the same as refund. In this case, an amount of ₹ 6,06,887/- towards excise duty/additional 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 responden .....

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..... 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 adversarial assessment order. The Tribunal has referred to the cases of 5. 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 authority passed an order which is appealable and the party did not choose to exercise the statutory right of appeal, 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 adjudicating authority had committed an error in passing his order. These judgments will therefore not apply when there is no assessment order on dispute/contest, like as is in the facts of the present case. We, therefore, answer the question framed by 6. holding that .....

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..... dustries Ltd. engaged the attention of the Hon'ble Court. In a regime of self-assessment, the scope for grievance and filing of appeal is non-existent. Nor can the assessing officer be compelled by assessee to resort to re-assessment to enable filing of appeal. This has been discussed at length in the impugned order. On the contrary as observed by the Hon'ble High Court of Bombay in re Hero Cycles Ltd. The first question that we are called upon to consider is, '6. whether in the absence of impugning the original order of assessment by preferring a statutory appeal which was available, should this Court, ought to exercise its extraordinary jurisdiction. … … … …. The petitioners though had statutory remedy of an appeal against the order of assessment, did not invoke that remedy, but instead directly filed the applications for refund. … … … … … … … … While dismissing the petition, the Court noted that where the party feels aggrieved by an order of the authority and has adequate alternative remedy which it may resort to and if it does not avail of that remedy, the High Court will require a strong case .....

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..... 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 adjudicating authority had committed an error in passing his order. These judgments will therefore not apply when there is no assessment order on dispute/contest, like as is in the facts of the present case. We, therefore, answer the question framed by 6. holding 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.The judgment supra has not been stayed. Therefore, we find no reason to hold that the first appellate authority had erred. We find no justification to interfere with the impugned order". 8. In view of the above decisions, the impugned orders cannot be sustained and are accordingly, set aside. The appeals filed by the appellants are allowed. (Operative part of the order was pronounced in the open court.)
Case laws, Decisio .....

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