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TMI Blog2022 (2) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case, admittedly the bills of entry were assessed at the nil rate of duty therefore, there was nothing exist to challenge in the Bills of entry. The rubber cess was paid by the appellant separately through challan only on insistence of the department. However, even such payment has not been assessed by the department therefore, as regard the payment of rubber cess there was neither any assessment nor any need to challenge the same therefore, in our considered view the learned Commissioner (Appeals) has wrongly held that the appellants were required to challenge the assessment of Bills of entry. There is no dispute that the rubber cess paid by the appellant was legally not payable therefore; the amount of rubber cess paid by the appellant under protest became refundable. This very same issue has been considered by the Hon ble Bombay High Court in the case of SESA GOA LTD. VERSUS COMMISSIONER OF CUSTOMS, GOA [ 2015 (5) TMI 879 - BOMBAY HIGH COURT] , where it was held that when the assessment is at nil rate of duty any amount paid separately, for the purpose of the refund of the same the assessment of bills of entry need not be challenged. Principles of Unjust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of Entry were neither reassessed nor assessment was modified in appeal proceeding and hence the refund was not maintainable. That by exclusive placing reliance upon the Charted Accountant certificate for the purpose of unjust enrichment refund cannot be granted as the same has no validity unless supported the facts available in books of accounts. The Appellant filed appeal No. C/11524/2015-DB against the said order. The Principal Commissioner meanwhile on the basis of order passed by Commissioner (Appeals) issued show cause notice dated. 05.10.2015 towards recovery of sanctioned refund under Section 28(1) along with interest under section 28AA(1) of the Customs Act, 1962. Vide impugned order dated. 07.12.2015 he ordered for recovery of refund amount along with interest. Aggrieved the Appellant has filed appeal No. 11238/2016. Both the appeals are taken up for disposal. 3. Shri Prakash Shah, Learned Counsel appearing for the Appellant submit that the findings of Learned Commissioner (Appeals) that Appellant had paid Rubber Cess on the assessment of bills of entry is factually incorrect and contrary to records. The records clearly show that rubber cess was not paid on assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bills of entry were assessed at nil rate of duty, there is no issue arises out of the Bills of entry which can be challenged by the appellant. The bills of entry assessed can be challenged only in those cases where the duty was on a higher side and excess duty was not payable in order to claim the refund of such excess paid duty. The assessee is first required to challenge the bills of entry and consequential to outcome of the challenge to assessment the appellant become entitle for the refund. However, in the present case, admittedly the bills of entry were assessed at the nil rate of duty therefore, there was nothing exist to challenge in the Bills of entry. The rubber cess was paid by the appellant separately through challan only on insistence of the department. However, even such payment has not been assessed by the department therefore, as regard the payment of rubber cess there was neither any assessment nor any need to challenge the same therefore, in our considered view the learned Commissioner (Appeals) has wrongly held that the appellants were required to challenge the assessment of Bills of entry. There is no dispute that the rubber cess paid by the appellant was legally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating 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. 11. Considering the said observations and taking note of the facts of the present case, admittedly, the appellant cannot be said to be aggrieved with the correctness of the order of nil assessment. The order sanctioning refund passed by the Assistant Commissioner dated 14-12-2007 is accordingly justified. Consequently, the orders passed by the Commissioner (Appeals) dated 26-5 2008 and the order passed by the CESTAT dated 17-6-2009 cannot be sustained and deserve to be quashed and set aside. The substantial question of law is answered accordingly. From the above judgment also, it can be seen that when the assessment is at nil rate of duty any amount paid separately, for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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