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TMI Blog2018 (11) TMI 1814X X X X Extracts X X X X X X X X Extracts X X X X ..... i S. C. Mohanty, Advocate for the Appellant (s) Shri S. K. Naskar, A.C. (AR) for the Respondent(s) ORDER These appeals were disposed by the Tribunal vide final order no. 78522-78536/2017 dated 30.11.2017 by observing as under : "(i) During the course of argument both sides agreed that the issue is pending before the Hon'ble Supreme Court in the case of Union of India Vs. Micromax Informatics Ltd. [2017 (349)E.L.T. A 101 (S.C.)]. Both the parties have further agreed that without the final verdict of the Hon'ble Supreme Court, the present issue cannot be decided. In the above scenario, liberty is granted to the appellants to come again after having final verdict from the Supreme Court (Supra), within a prescribed time, if advise so. With the aforesaid liberty, all the appeals are disposed of." 2. Subsequently, the appellants have filed Miscellaneous Application on 14.09.2018 for restoration of their appeals. Appellants have stated in the Miscellaneous Application that it is respectfully submitted that the order dated 30.11.2017 was passed by the Hon'ble Tribunal taking note of the fact that special leave petition against the decision of the Hon'ble Delhi High Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Indonesian origin and imported vide Bill of Entry No. 2394908 dated 12.06.2013, which is fully exempted from BCD, under Notification No. 46/2011 Cus dated 01.06.2011 for want of original documents regarding country of origin, the item was cleared on payment of BCD, at full rate, under self-assessment, in terms of Section 17 (1) of the Customs Act, 1962. Subsequently, upon receipt of country of Original documents, the appellant claimed the benefit of the aforesaid notification by filling necessary refund application in terms of Section 27 (1) of the Act, within the prescribed time period. The above factual aspects are not under dispute. The present case of refund is fully covered by the decision of the Hon'ble Supreme Court in the case of share Medical care Vs. UOI reported in 2007 (209) E.L.T. 321 (S.C). Ignoring the settled position of law,. The refund application was rejected on the ground that the assessment of bill of entry is final in the EDI/RMS, and the same is not challenged. Reliance was placed on Priya Blue as reported in 2004 (172) E.L.T 145 (S.C.). This decision of the Hon''ble Supreme court was applicable to assessment and refunds of Customs duty, under the pre-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of refund. Such reduced value represented the transaction value of imported Rock Phosphate, in terms of Section 14 of the Customs Act. As stated above, the appellant at the time of importation, paid duty on the value shown in the bill of lading, which was higher than the transaction value, determined subsequently, after receipt of discount/rebate amount from the foreign suppliers. Transaction value, in terms of Section 14 of the Act, mans the price actually paid payable for the imported goods. Duty, in terms of Section 14 of the Act, is leviable/payable on the transaction value. Duty payable in this case became lesser than the duty already paid by the appellant. The Assistant Commissioner relying upon the decision of the Hon'ble Supreme Court in the case of Flock (India) Pvt. Ltd. 2000 (120) E.L.T. 285 (S.C.) and Priya Blue Industries 2004 (172) E.L.T. 145 (S.C.), had held that since the appellant did not challenge the assessment of bill of entry by filling appeal against the same, Refund Applications are not maintainable. Aggrieved by the adjudication orders of the Assistant Commissioner, the appellant filed appeals before the commissioner (Appeals), which were rejected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respondent, it cannot be said that the duty was paid by the respondent "in pursuance of an order of assessment". The case of the respondent falls under the second category, i.e., "borne by him" contained in Section 27 ibid, according to which, since the duty incidence has been borne by the respondent, claiming of refund of such excess duty in terms of Section 27 ibid, in our view is in conformity with the statutory provisions. 7. The judgment of Hon'ble Supreme Court in the case of Priya Blue Industries Ltd. (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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." 8. In view of the above decision, the impugned order cannot be sustained and accordingly, it is set aside. The appeals filed by the appellants are allowed. (Operative porti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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