9911796707
TMI Blog2018 (11) TMI 1814X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals 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 case of Micromax Informatics (Supra) was filed by the Revenue and same was at 'issue notice' stage. The matter came up before the Hon'ble Apex Court on 27.11.2011 and the Hon'ble Court were pleased to grant leave, but specifically refused stay of operation of the order passed by the Hon'ble Delhi High Court, as reported in 2018 (360) E.L.T. A 259 (S.C.). The applicant respectfully submits that the order dated 27.11.2017 passed by the Hon'ble Supreme Court refusing the stay on the order of the Hon'ble Delhi High Court, was not available, when the subject appeals were taken up for hearing by the Hon'ble Tribunal on 30.11.2017. 3. The Ld. Advocate appearing on behalf of the appellants submitted that it is worthwhile to draw the kind attention to the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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-amended provisions of Section 17 and 27 of the Customs Act, existed upto 07.04.2011 (ii) Muriate of potash (MOP) The above item was imported under two bills of entry No. 3007137 dated 16.08.2018 & No. 3830008 dated 18.11.2013, the item MOP is fully exempted from CVD in terms of SI No. 127 of Notification no. 12/2012-CE dated 17.03.2012. Due to the system inability under the EDI/RMS the benefit of the above Exemption Notification was not extended, while filling the bill of entry, therefore, the appellant cleared the imported MOP on self assessment under Section 17 (I) of the Customs Act 1962, upon payment of CVD at usual rate. Subsequently, the Customs duty paid, was claimed as refund in terms of Section 27 (I) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the impugned common order, against which the present appeals are filed before this Hon'ble Tribunal. 5. 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. 6. 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.). 7. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) cited by Revenue in their grounds of appeal is distinguishable from the facts of the present case inasmuch as the duty in such case was paid by the importer in pursuance of an assessment order and the Hon'ble Supreme Court have ruled that so long as the order of assessment stands, the duty would be payable as per that order of assessment and refund claim is not an appeal proceeding. Contrary is the case in hand, wherein the respondent was not aggrieved by the order of assessment inasmuch as on the basis of information furnished by it in the Bill of Entry, the same was assessed by the Customs Department. Thus, there w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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