2018 (9) TMI 762 – CESTAT KOLKATA – TMI – Refund claim – excess payment of duty consequent upon rebate discount given by the Supplier – refund claim was rejected mainly on the ground that the assessment made by the appellant in the Bill of Entry reached its finality, which they have not challenged – Held that:- Tribunal in the case of Commissioner of Customs (Export) New Delhi Vs. Lalit Kumar [2017 (1) TMI 7 – CESTAT NEW DELHI] after considering the decision of Priya Blue Industries Limited [2004 (9) TMI 105 – SUPREME COURT OF INDIA], dismissed the appeal filed by the Revenue, and held that since the Bill of Entry was assessed by the Customs Department and the assessed duty was paid by the respondent, it cannot be said that the duty was paid by the respondent in pursuance of an order of assessment. The case of the respondent falls under the second category i.e. borne by him contained in Section 27 ibid, according to which, since the duty incidence has been borne by the respondent, cla
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d a refund claim on reduction of freight in respect of Bill of Entry No. 9575519 dated 15.06.2015. 3. The Adjudicating authority rejected the refund claim pertaining to excess payment of Excise duty consequent upon rebate discount given by the Supplier. 4. By the impugned Order, the Commissioner (Appeals) rejected the appeal filed by the appellant. Hence, the appellant filed this appeal. 5. Heard both sides and perused the appeal records. 6. On perusal of the impugned Order, I find that the refund claim was rejected mainly on the ground that the assessment made by the appellant in the Bill of Entry reached its finality, which they have not challenged. 7. The lower authorities followed the decision of the Hon ble Supreme Court in the case of Priya Blue Industries Limited Vs. Commissioner 2004 (172) ELT 145 (SC). 8. I find that the Tribunal in the case of Commissioner of Customs (Export) New Delhi Vs. Lalit Kumar – 2017 (358) 395 ( Tri – Del) after considering the decision of Priya Blue
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of premature and not maintainable, in our considered opinion, would give rise to the cause of action for filing appeal before the ld. Commissioner (Appeals). Since, the decision of the adjudicating authority has been conveyed in the letter dated 24-8-2011, it can be concluded that the said letter is only detriment to the interest of the respondent, against which the appeal was preferred before the Commissioner (Appeals). Appeal against the said letter having been filed within a period of sixty days from the date of its communication in our opinion, there is no delay in filing appeal before the ld. Commissioner (Appeals). Thus, we do not find any merits in the contention of Revenue that filing of appeal before the Commissioner (Appeals) is barred by the limitation of time. 6. Section 27 ibid provides the modalities and procedures for claiming refund of Customs Duty. The said provision mandates that duty paid in pursuance of an order of assessment or borne by the importer, can claim the
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resent case inasmuch as the duty in such case was paid by the importer in pursuance of an assessment order and the Hon ble Supreme Court have ruled that so long as the order of assessment stands, the duty would be payable as per that order of assessment and refund claim is not an appeal proceeding. Contrary is the case in hand, wherein the respondent was not aggrieved by the order of assessment inasmuch as on the basis of information furnished by it in the Bill of Entry, the same was assessed by the Customs Department. Thus, there was no scope on the part of the respondent to file any appeal before the Commissioner (Appeals) against the assessed Bill of Entry. Further, the alternative provided in Section 27 ibid, i.e., borne by him was not the subject matter of dispute before the Hon ble Supreme Court. Considering the second alternative provided in Section 27 ibid, the Hon ble Delhi High Court in the case of Aman Medical Products Ltd. v. Commissioner of Customs, Delhi reported in 2010
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because there is no contest or lis and hence no adversarial assessment order. The Tribunal has referred to the cases of 5. CCE, Kanpur v. Flock (India) Pvt. Ltd. [2000 (120) E.L.T. 285] and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive), 2004 (172) E.L.T. 145 (S.C.). In both these cases, referred to by the Tribunal there was an assessment order which was passed and consequently it was held that where an adjudicating 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. We, therefore, answer the question framed by 6. holding that the refund c
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