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TMI Blog2021 (1) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... t order of assessment stands. The duty would be payable as per the order of assessment. It has also been held that refund claim is not an appeal proceeding and an officer considering a refund claim cannot sit in the appeal over an assessment made by a competent officer and cannot review an order of assessment - In view of the aforesaid enunciation of law, it is evident that a person is not entitled to claim refund of duty without challenging an order of assessment. In the facts of the case, there is no material placed on record to show that there is any challenge made to the assessment order. Applicability of N/N. 10/2006 dated 01.03.2006 - HELD THAT:- In the factual situation of the case and in view of the fact that even though under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent made a refund claim of ₹ 17,72,941.88 on the basis of the General Exemption No.53, Sl.No.14, wherein the goods are classifiable under CSH76151100, 761519 like table, kitchen or other house hold articles, scourers and scouring or polishing pads, gloves and the like other than parts and pressure cookers falling under tariff item 7615190 as the aforesaid item attract NIL rate of duty. The Deputy Commissioner of Customs (Inland Container Depot) issued a show cause notice dated 14.10.2006, by which the respondent was asked to reply to the show cause notice as to why the claim for refund cannot be rejected. Then, the Deputy Commissioner of Customs, on 07.02.2007 rejected the claim for refund made by the respondent. The assessee thereu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im for refund can be made by any person who had (a) paid duty in pursuance of an order of assessment or (b) a person who had borne the duty. It has further been held that unless the order of assessment can be reviewed under Section 28 of the Act and / or modified in an appeal, that order of assessment stands. The duty would be payable as per the order of assessment. It has also been held that refund claim is not an appeal proceeding and an officer considering a refund claim cannot sit in the appeal over an assessment made by a competent officer and cannot review an order of assessment. The aforesaid decision was followed by the Supreme Court in ITC Limited (supra) and it was held in Paragraph 44 as under: 44. The provisions under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. Vs. Commr. Of Customs [(2005) 10 SCC 433] . 6. In view of the aforesaid enunciation of law, it is evident that a person is not entitled to claim refund of duty without challenging an order of assessment. In the facts of the case, there is no material placed on record to show that there is any challenge made to the assessment order. Therefore, the order passed by the Tribunal is in contravention of the law laid down by the Supreme Court in the case of ITC Limited (supra) and therefore, the same cannot be sustained in the eye of law. 7. So far as the reliance placed by the Tribunal on the Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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