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TMI Blog2006 (2) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... tal Micrometer. The Respondents cleared the goods after completing the formalities. Subsequently the respondents filed a refund claim of Rs. 94,842/- with the authorities on the ground that they had forgotten to claim the exemption of CVD under notification No. 10/2003(CE). The said refund claim was rejected by the adjudicating authority vide his letter dated 17.6.2003, directing the respondent to prefer an appeal against the finally assessed Bill of Entry. Aggrieved by the said order the respondents preferred an appeal and the Commissioner (Appeals) allowed the appeal and directed the adjudicating authority to decide the case on merits. Hence, this appeal by the department. 3. The learned D.R. submits that the Commissioner (Appeals) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, if they would have claimed the benefit of notification when they filed the Bill of Entry for clearance of the goods. The respondents in this case having not claimed the benefit of notification, at the time of filing and payment of Bill of Entry could have challenged the same, but they did not do so and filed a refund claim. The filing of refund claim for non-availment of the benefit of notification would amount to opening the finally assessed Bill of Entry, as, if refund claim would have got sanctioned, it would mean, that the Bill of Entry was assessed wrongly. The provisions of the Customs Act, 1962 do not permit this. The respondents should have chosen time tested path of appealing against the assessed Bill of Entry. Further, I find, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this case the respondent is to be held as negligent all through, firstly when they filed Bill of entry for clearance of goods they did not claim benefit of notification, and secondly they did not file an appeal against the finally assessed Bill of entry, even when directed in time by authorities. It is a settled law by catena of decisions that, if the assessee has not claimed any benefit of notification, then the assessing officer could not be blamed for the outcome. 6. Further, I find that the ratio in the case of Karnataka Power Corpn. Ltd. (supra) will not be applicable in this case in as much that, in that case, the Hon'ble Supreme Court came to conclusion after noting the fact that the appellant therein had sought reassessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Assessment was not correct and could claim refund on that basis even without filing an Appeal. 8. We are unable to accept this submission. Just such a contention has 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 would be payable as per that Order of assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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