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TMI Blog2019 (12) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... without having first challenged the assessment order itself and therefore the impugned order denying such refund is correct. Principles of natural justice - appellant also claims that they were not given an opportunity of being heard before finalizing the assessment - HELD THAT:- Nevertheless, the fact remains that such assessment has not been challenged at all by the appellant. This appeal is not with respect to finalization of provisional assessment but with respect to refund - the rejection of the refund by the impugned orders of the first appellate authority are correct and call for no interference. Appeal dismissed - decided against appellant. - Customs Miscellaneous Application No.76814 of 2018, 76815 of 2018, 76816 of 2018, 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey have paid excess Customs duty taking the wrong value for the purpose of calculation. Initially, the assessments were done provisionally and subsequently they were finalized by the Assistant Commissioner of Customs. Thereafter, the appellant filed a refund claim which was rejected by the lower authority and such rejection was upheld by the first appellate authority by the impugned orders on the ground that the assessments which were done by the adjudicating authority were not challenged by the assessee. He relied on the case law Flock (I) Pvt.Ltd. [2000 (120) E.L.T. 285 (SC)] and Priya Blue Industries Ltd. [2004 (172) ELT 145(SC)] to reject the refund applications. 5. Aggrieved by this rejection by the first appellate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason for this is officers sanctioning the refund cannot sit in judgement over the assessment which in itself is an adjudication process. Therefore the assessment must be challenged before the Commissioner(Appeals) before refund claim can be filed. Sanction of refund is mere a mechanical process which arises out of such re-assessment or modification of assessment at the appellate stage. Subsequently, in the case of Aman Medical Products Limited [2009-TIOL-566-HC-DEL-CUS] and Micromax Informatics Ltd. [2016-TIOL-978-HC-DEL-CUS) the Hon ble High Court of Delhi has distinguished the cases of Priya Blue Industries and Flock India Ltd. and held that where there is no assessment order itself there is nothing for the assessee to challenge and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re-assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-assessment is not permitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd under Section 27 cannot be enlarged. It has to be read with the provisions of Sections 17, 18, 28 and 128. 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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