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TMI Blog2019 (3) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 27 of the Customs Act, 1962 - refund allowed - appeal allowed - decided in favor of appellant. - MA (EH)-77675-77687/18 & Cus. Appeal Nos.75850-75862/18 - MO/75133-75145/2019 & FO/75233-75245/2019 - Dated:- 4-3-2019 - SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) And SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Shri S. C. Mohanty, Advocate for the Appellant (s) Shri S. Guha, Asstt. Commr. (AR) for the Revenue ORDER Per Shri P. K. Choudhary: The present Misc. Applications are for early hearing of the Cus. Appeal Nos.75850-75862/18, which have been filed against the Orders-in-Appeal Nos.47-59/CUS/CCP-GST/2017 dt.22.12.2017, passed by Commr. (Appeals) GST, Excise Customs, Bhubaneswar. 2. After carefully consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of import, the imported goods were cleared on payment of duty, on the basis value shown by the overseas supplier, in the bill of lading. 6. After completion of the contract period, and as a result of price negotiation between the parties, the quantity rebate/price discounts were determined. Thereafter, the appellant raised debit notes on the foreign suppliers, consequent upon which the differential amount was refunded to the appellant, through the authorised banking channel. This fact is also not under dispute. In all the thirteen cases, the bills of entry were presented, following the self assessment procedure in terms of Section 17 (1) of the customs Act, 1962 and customs duty was accordingly paid on the value, as shown in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the commissioner (Appeals), which were rejected by the impugned common order, against which the present appeals are filed before this Hon ble Tribunal. 9. On perusal of the impugned order, we find that the refund claim was rejected mainly on the ground that the assessment made by the appellant in the Bill of Entry reached its finality, which they have not challenged. 10. The lower authorities followed the decision of the Hon ble Supreme Court in the case of Priya Blue Industries Limited Vs. Commissioner 2004 (172)ELT 145 (S.C.). 11. We find that the Tribunal in the case of Commissioner of Customs (Export) New Delhi Vs. Lalit Kumar reported in 2017 (358) 395 (Tri.-Del.) after considering the decision of Priya Blue Industries Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him was not the subject matter of dispute before the Hon ble Supreme Court. Considering the second alternative provided in Section 27 ibid, the Hon ble Delhi High Court in the case of Aman Medical Products Ltd. v. Commissioner of Customs, Delhi reported in 2010 (250) E.L.T. 30 (Del.) have held that duty borne by the person can claim refund under Section 27 ibid. The relevant paragraphs in the said judgment are extracted herein below :- If, therefore, we refer to language of 4. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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