9911796707
TMI Blog2008 (2) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... iled two bills of entry, Nos. 376277 and 376278 both dated 15-7-04, for clearance of raw asbestos after paying BCD @ 20% ad valorem besides customs education cess @ 2%. Duty so assessed was deposited on 19-7-04. The appellant filed another bill of entry for similar goods. The duty this time was assessed @ 15% ad valorem. The case of the appellant is that rate of duty had been reduced from 20% to 15% Under notification No. 68/04-Cus. dated 9-7-04 and, therefore, it was entitled to refund of excess duty paid amounting to Rs. 27,080/-. The case of the appellant further is that the excess duty was charged in respect of previous consignments on account of non-feeding of the amended notification in the EDI system. It is stated that rate of duty i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the refund claim is not maintainable. 6. We have gone through the aforementioned judgments and, we are of the view that the case is covered by the ratio of the decisions in Flock (India) and Priya Blue Industries. In the former case it was observed - "10……… there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an 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 the adjudicating authority had committed an error in passing his order. If this position is accepte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths would become redundant as the Appeal proceedings would never be over within that period. It was submitted that in the claim for refund the party could take up the contention that the Order of Assessment was not correct and could claim refund on the basis even without filing an Appeal. 6. We are unable to accept this submission. Just such a contention ha been negatived, by this Court in Flock (India)'s case (supra). Once an order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal that Order stands. So long as the Order of Assessment stands the duty could be payable as per that Order of Assessment. A refund claim is not an A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad altered its stand at the appellate stage regarding classification of the goods. When the matter reached the Tribunal, it was observed the appeal raised the question of law as to whether when a new classification is suggested before an appellate authority, the consequential relief flowing out of it can become time barred and answered the question against the assessee and dismissed the appeal. In these facts the Supreme Court held that the Tribunal had mis-directed itself as there was no question "but that the assessee had sought amendment before the Assistant Collector of Customs himself and it was in the light of that stand that the issue had to be decided". Since the claim of the assessee had not been considered in the light of the lett ..... X X X X Extracts X X X X X X X X Extracts X X X X
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