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TMI Blog2019 (5) TMI 1624X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment. This is because where there is self assessment, the question of any assessment order does not arise. So long as the assessee is able to show that the duty is paid by him or borne by him, he is entitled to file a claim for refund. Thus, if duty has been paid under self assessment basis, a claim for refund can be made without filing any appeal against the bill of entry. The Hon ble Delhi High Court in the case of AMAN MEDICAL PRODUCTS LTD. VERSUS COMMISSIONER OF CUSTOMS, DELHI [ 2009 (9) TMI 41 - DELHI HIGH COURT] held that a claim for refund would be maintainable in absence of an Appeal against bills of entry where the duty was paid inadvertently. The Apex Court in the case of M/S SRF LTD., M/S ITC LTD VERSUS COMMISSIONER OF CUSTOMS, CHENNAI, COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) , NEW DELHI [ 2015 (4) TMI 561 - SUPREME COURT] has held that the exemption from payment of CVD shall be available even in respect of imported goods for the reason that no question of availing cenvat credit under the Cenvat Credit Rules, 2002 arises where inputs are produced in a country other than India. Thus, the condition must be considered to be fulfilled. Appeal dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Customs (ACC Import) and Commissioner Customs (Airport General), New Delhi dated 26.09.2018 directing to file an Appeal against the Order-in-Appeal dated 21.06.2018. In furtherance thereof the Department is in Appeal before this Tribunal. 3. We have heard both the parties. 4. It is submitted on behalf of the Department that the Commissioner (Appeals) has erred in holding that post year 2011, the refund provision has changed and the conditionality of payment having been made pursuant to an Order of Assessment did not exist. He has further erred in holding that under the amended Section 27, the authority cannot refuse to consider a refund application only because no Appeal had been filed against the assessment order and that self assessment is not an assessment order per se. The Commissioner(Appeals) has erred in distinguishing the decisions of the Hon ble Supreme Court in the case of C.C.E. Kanpur Vs. Flock (India) Pvt. Ltd. 2000 (120) E.L.T. 285 (S.C.) and the case of Priya Blue Industries Ltd. Vs. Commissioner of Customs (Preventive) 2004 (172) E.L.T. 145 (S.C.) which are applicable even post the amendment of 2011. 5. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms or Deputy Commissioner of Customs... 6.2 A perusal of the erstwhile Section 27 of the Customs Act would provide that refund was admissible in respect of duty which was paid in pursuance of the order of assessment. Thus, if there was an order of assessment by an officer, the same was subject to challenge by way of an appeal subsequent to which refund would accrue to an assessee in light of a favourable appellate order. 6.3 On 08.04.2011, Section 27 of the Customs Act was amended. This new Section is worded differently, as has been extracted below Section 27..... Claim for refund of duty (1) Any person claiming refund of any duty or interest (i) paid by him, or (ii) borne by him may make an application for refund of such and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest. 6.4 As per the existing provisions of Section 27 of the Customs Act, it is not mandatory that a claim for refund of duty be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when there is no assessment order on dispute/contest, like as is in the facts of the present case. 6. We, therefore, answer the question framed by 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. 6.6 In the present case, Ld. Deputy Commissioner of Customs (Refund) passed two Orders-in-Original Nos. 886/PS/2016 and 887/PS/2016 both dated 30.06.2016 rejecting refund claims of the respondent on ground that the respondent has failed to submit any re-assessment orders or re-assessed bills of entry, relying on the judgments of C.C.E. Vs. Flock India Pvt. Ltd. reported at 2000 (120) E.L.T. 285 (S.C.) and Priya Blue Industries Vs. Commissioner reported at 2004 (172) E.L.T. 145 (S.C.). But in the case of Micromax Informatics Ltd. Vs. Union of India 2016 (335) E.L.T. 446 (Del.), the Hon ble Delhi High Court distinguished the judgment in the case of Priy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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