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TMI Blog2019 (5) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... of an assessee. It is for the Assessing Officer to take up a Bill of Lading and frame an assessment thereon. If the statement in the impugned letter is to be carried its logical conclusion, no refund may be sought by any person unless an order of assessment is made, which itself is only at the discretion of an Assessing Officer. Therefore, the statement is clearly contrary to law and untenable. The Assistant Commissioner ought not to have insisted upon an order of assessement having been passed. The petitioner is permitted to re-submit its application for refund within a period of two(2) weeks from today. The said applications will be considered by the respondents on merits and in accordance with law - petition allowed. - W.P.No.23439 of 2018 And W.M.P.No.27352 of 2018 - - - Dated:- 9-4-2019 - Dr. Justice Anita Sumanth For the Petitioner : Mr.Joseph Prabakar For the Respondents : Mr.G.M.Syed Nurulllah, Senior Panel Counsel ORDER Heard, Mr.Joseph Prabakar, learned counsel for the petitioner and Mr.Mr.G.M.Syed Nurulllah, learned Senior Panel Counsel for the respondents. 2.Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The impugned letter states as follows: Please refer to your above refund application. It is seen from the statement of facts and grounds of claim submitted by you that you are claiming change on the ground that the supplier had wrongly mentioned unit price in the invoice and that they wrongly filed the said Bill of Entry with the Incorrect unit price, resulting in payment of excess duty of ₹ 20,55,010/-. However, it is seen from your refund application that the Bill of Entry submitted by you in your application is not re-assessed by the concerned assessing group. An order of assessment given by the competent authority i.e. the concerned Group cannot be reviewed or modified by the Refund section. As held by the Apex Court in the case of M/s.Priya Blue Industries Vs Commissioner of Customs(2004 (172) ELT 145(SC)- Refund will arise only if such order is lawfully modified or revised . Therefore, it is advised that you may approach the concerned assessing Group for amendment/re-assessment of your Bills of Entry and then file refund application in this case. You may file refund application if your Bill of Entry is re-assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 (Tri.Mumbai)]; Liebherr India Pvt.Ltd. Vs.Commissioner of Customs (Port), Kolkata [2017 (358) E.L.T.656)(Tri-Kolkata)]; KBK Palscon Pvt.Ltd. Vs. Union of India [2016 (339) E.L.T.350 (All.)]; Indian Potash Ltd. Vs.Commissioner of Customs, Kandla [2016 (339) E.L.T.140 (Tri.-Ahmd)]; CEAT Ltd. Vs. Commissioner of Customs, Kolkata [2016 (335) E.L.T.693 (Tri. Mumbai)]; CEAT Ltd.Vs. Commissioner of Customs, Kolkata [2015 (335) E.L.T.791(Tri.- Mumbai)]; Joneja Bright Steels Pvt.Ltd. Vs. Commr.of Customs (ICD), New Delhi [2015 (329) E.L.T.952 (Tri.Del.)]; Commissioner of Customs (Appeals) Vs. ACE Designers [2015 (329) E.L.T. 109 (Mad)]; Hindustan Petroleum Corpn. Ltd. Vs. Commr. Of Cus. (Imports), Mumbai [2015 (328) E.L.T.490 (Tri.-Mumbai); Commissioner of Customs, Bangalore Vs. BPL Telecom Ltd. [2015 (325) E.L.T.467 (S.C.)]. 11. Prompting Mr.Nurullah, to immediately state that the aforesaid decision has not been accepted by the Department but, has been appealed before the Supreme Court in Civil Appeal No.2960 of 2010, and admitted. I need not advert to this case for the reason that the assesse in Aman Medical Products Ltd (supra) has been assessed wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming refund of any duty- (i) paid by him in pursuance of an order of assessment; or (ii) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs. 15. Thus, prior to 2011, when Section 27 was amended, a person was entitled to seek refund only in a situation where the claim arose out of the payment made by him in pursuance of an order of assessment or borne by him in pursuance of an order of assessment as per the law settled by the Supreme Court in the case of Priya Blue Industries (supra). 16 . Subsequent to amendment of Section 27, the provisions of Section 27 have been considerably widened, as a result of which, after 08.04.2011, a claim for refund would lie in respect of any amount paid or borne by a person. The amended provision reads thus: 17. This aspect of the matter has been completely lost sight of by the first respondent in passing the impugned communication. The sole ground on which the refund application has been returned is that the Bill of Ent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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