9911796707
TMI Blog2008 (4) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent had been rejected on the ground that the respondent did not challenge the assessment by way of appeal, therefore, the refund claim was not maintainable. 2. Brief facts of the case are that the respondent filed five bills of entry dated 22.5.2002, 22.5.2002, 23.5.2002, 1.6.2002 and 1.7.2002 for clearance of canuula for injection needles and paid the duty assessed. They later filed claim for refund of the excess duty on the ground that by mistake they could not claim the benefit of Notification No.6/2002 (CE) dated 1.3.2003. By letter dated 27.1.2003, the Deputy Commissioner (Refund) informed the respondent that since the bills of entry had been assessed finally, the proper course would be to approach the appellate authority a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the entire process of levy and collection of excise duty. Such a position cannot, be countenanced." 4. A similar view was expressed by the Apex Court in Priya Blue Industries Ltd. Vs. Commissioner of Customs (Preventive) 2004 (172) ELT 145 (SC) wherein submissions to the contrary on behalf of the assessee were rejected in these words :- "5…………….It has been strenuously submitted that the words 'in pursuance of an Order of Assessment' necessarily imply that a claim for refund can be made without challenging the Assessment in an Appeal. It is submitted that if the assessment is not correct, a party could file a claim for refund and the correctness of the Assessment Order can be examined whilst considering the claim fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment' only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in Appeal or reviewed a claim for refund can be maintained." 5. Shri J.M. Sharma appearing for the respondent did not attempt to make any submission to the contrary. He, however, submitted that the ratio of the decisions in Flock (India) Pvt. Ltd. and Priya Blue Industries Ltd. can be applied where a formal assessment order has been passed but no appeal is preferred against it. In the instant case no formal assessment order was passed and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on such duty- (i) paid by him in pursuance of an order of assessment or (ii) borne by him, may make an application for refund of such duty and interest, if any. As seen above, in the case of Priya Blue Industries Ltd., submission was made that the expression 'in pursuance of an order of assessment' necessarily implies that a payment of duty must be pursuant to an assessment order. The submission was rejected observing that the words 'in pursuance of an order of assessment' only indicate the party/person who can make a claim for refund. Where the party files bills of entry and pays duty assessed thereon, it cannot be said that there was no assessment or assessment order. 8. The term 'assessment' has different shades of meaning and in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; 10. The facts of the present case are similar to those of Priya Blue Industries Ltd. As a matter of fact, the respondent paid the duty without even raising protest. We fail to understand as to how without challenging the assessment by way of appeal it could claim refund of the alleged excess amount. If such claim were to be entertained it would follow that the refund authority having co-ordinate jurisdiction with the adjudicating authority may go behind the assessment made by the coordinating authority. As observed in Flock (India) Pvt. Ltd. this would make the provisions for adjudication, appeal etc. redundant. This will run contrary to the scheme of the Act, and the entire process of levy of collection of duty will become un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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