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TMI Blog2004 (5) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Importer challenging the order passed by the Commissioner (Appeals) rejecting the application for refund has come up for consideration before this Larger Bench pursuant to reference made by the regular bench under Miscellaneous Order No. 128/2003 [2003 (155) E.L.T. 515 (Tri. - Bang.)]. The question to be considered is whether the ratio of the decision of the Supreme Court in CCE, Kanpur v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned on the basis of the ratio of the decision of the Supreme Court in Flock India, the appellant sought to draw support from the decision of the Kolkata Bench of the Tribunal in Mecon Ltd. v. CC, Calcutta, 2003 (153) E.L.T. 574 (T) = 2003 (55) RLT 219 wherein it has been held that refund claim of excess duty paid as per assessment of Bill of Entry is entertainable, though assessment is not cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in 2003 (157) E.L.T. A265. Similar view taken by the Tribunal in Super Cassettes Industries Ltd. v. CC, Kolkata, 2003 (162) E.L.T. 1148 (T) = 2003 (57) RLT 291 was affirmed by the Hon'ble Supreme Court by dismissing the appeal filed by the party 2004 (163) E.L.T. A116 (S.C.) = 2003 (58) RLT F9. 2. In Kopran Ltd. v. CC, New Delhi, 2002 (141) E.L.T. 694 the Tribunal applied the ratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Counsel for the appellant submitted that when contentions are raised by the assessee and an adjudication order is issued it will not be open for the assessee to challenge the adjudication order on the Bill of Entry merely by filing an application for refund. The position will be different when there is no Lis between the parties and it was only a mere assessment of the Bill of Entry. 4. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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