whether in the absence of any challenge to the order of assessment in appeal, any refund application against the assessed duty can be entertained? = The scope of the provisions of refund under Section 27 cannot be enlarged. It has to be read with the provisions of Sections 17, 18, 28 and 128. - When we consider the overall effect of the provisions prior to amendment and post­amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self­assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self­assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self­assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. Resultantly, we find that the order(s) passed by Customs, Excise, and Service Tax Appellate Tribunal is to be upheld and that passed by the High Courts of Delhi and Madras to the contrary, deserves to be and are hereby set aside. We order accordingly. We hold that the applications for refund were not maintainable. The appeals are accordingly disposed of. Parties to bear their own costs as incurred.

1
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 293­294 OF 2009
ITC LIMITED … APPELLANT(S)
VERSUS
COMMISSIONER OF CENTRAL EXCISE,
KOLKATA IV … RESPONDENT(S)
WITH
CIVIL APPEAL NO.2960 OF 2010
CIVIL APPEAL NO.5878 OF 2011
CIVIL APPEAL NO.310 OF 2011
CIVIL APPEAL NOS.4432­4434 OF 2011
CIVIL APPEAL NO.6407 OF 2011
CIVIL APPEAL NOS.1575­1582 OF 2012
CIVIL APPEAL NO.1585 OF 2012
CIVIL APPEAL NO.1571 OF 2012
CIVIL APPEAL NO.5490 OF 2011
CIVIL APPEAL NO.5491 OF 2011
CIVIL APPEAL NO.5489 OF 2011
CIVIL APPEAL NO.6054 OF 2011
CIVIL APPEAL NO.7710 OF 2014
2
CIVIL APPEAL NO.59­60 OF 2016
CIVIL APPEAL NO.96 OF 2016
CIVIL APPEAL NOS. 7384­86 OF 2019
(@ SPECIAL LEAVE PETITION (C) NOS.16114­16116 OF 2017)
CIVIL APPEAL NO. 7387 OF 2019
(@ SPECIAL LEAVE PETITION (C) NO.25193 OF 2016)
CIVIL APPEAL NO. 7388  OF 2019
(@ SPECIAL LEAVE PETITION (C) NO.26530 OF 2016)
CIVIL APPEAL NO. 20852 OF 2017
CIVIL APPEAL NO. 7389  OF 2019
(@ SPECIAL LEAVE PETITION (C) NO.4294 OF 2017)
CIVIL APPEAL NO.  7391  OF 2019
(@ SPECIAL LEAVE PETITION (C) NO.6269 OF 2017)
CIVIL APPEAL NO. 7392  OF 2019
(@ SPECIAL LEAVE PETITION (C) NO.15175 OF 2017)
CIVIL APPEAL NO.18765 OF 2017
CIVIL APPEAL NO.  7393 OF 2019
(@ SPECIAL LEAVE PETITION (C) NO.31561 OF 2017)
CIVIL APPEAL NOS. 7394­96 OF 2019
(@ SPECIAL LEAVE PETITION (C) NOS.5040­5042 OF 2018)
CIVIL APPEAL NO.  7397  OF 2019
(@ SPECIAL LEAVE PETITION (C) NO.15363 OF 2018)
CIVIL APPEAL NO.10082 OF 2018
3
J U D G M E N T
ARUN MISHRA, J.
1. These appeals have been preferred by the assessees as well as by the
Union of India aggrieved by the judgment and order passed by the High
Courts and Customs, Excise and Service Tax Appellate Tribunal, Kolkata
(for short referred to as “the Tribunal”).
2. The question involved in these appeals is whether in the absence of
any challenge to the order of assessment in appeal, any refund application
against the assessed duty can be entertained? 
3. The tribunal has in the case of ITC Limited opined that unless the
order of assessment is appealed, no refund application against the assessed
duty can be entertained.  On the other hand, in the cases in which Union of
India or the Department has come up in appeal, the High Court of Delhi
framed question of law as “whether non filing of appeal against the assessed
Bill   of  Entry  in  which  there   was   no  lis  between   the  importer  and  the
Revenue at the time of payment of duty will deprive the importer of his right
to file refund claim under Section 27 of the Customs Act, 1962 (for short,
“the 1962 Act”)”?
4. While interpreting provisions contained in Section 27 of the Act, the
High Court has opined that when there is no assessment order for being
challenged in appeal, which is passed under Section 27(1)(i) of the Act,
because there is no contest or  lis  and hence no adversarial assessment
4
order, the cases would be covered by the provision of Section 27(i) (ii) and
refund applications can be maintained by the assessee even in the absence
of filing appeals against the assessed bill of entry. The High Court of Madras
has opined similarly.
5. In the case of  Union of India & Ors. vs. Micromax Informatics Ltd.,
reported in (2016) 335 ELT 446 (Del) the High Court of Delhi has opined
that an important change has been made in Section 27 of the Customs Act
in that a person can now claim refund of any duty or interest as long as
such duty or interest was paid or borne by such person. The conditionality
of such payment having been made pursuant to an order of assessment
does not exist. It has also been observed that once an application is made
under Section 27(1) of the Act, it is incumbent on the authority concerned
to make an order under Section 27(2) determining if any duty or interest as
claimed   is   refundable   to   the   applicant.   It   has   been   opined   that   under
Section 27 of the Act as amended, it is not open to an authority to refuse to
consider the application for refund only because no appeal has been filed
against the assessment order, if there is one.
6. The High court has further opined that although under Section 27(2)
of the Act, the word ‘assessment’ includes a self­assessment, the clearance
of the goods upon filing of the bills of entry and payment of duty is not per
se an assessment order in the context of Section 27(1) (i) as it stood prior to
8.4.2011, particularly, if such duty has not been paid under protest.  In any
event, after 8.4.2011, as long as customs duty or interest has been borne by
5
a person, a claim for refund made by such person under Section 27(1) of
the Act will have to be entertained and an order passed thereon by the
authority concerned, even where an order of assessment may not have been
reviewed or modified in appeal.   Reliance has been placed on the case of
Aman Medical Products Limited v. Commissioner of Customs,  Delhi, 2010
(250) ELT 30 (Del).
7. The   facts   of   the   case   of   ITC   Limited   are   that   the   appellants
manufacture   paper   from   both   conventional   and   unconventional   raw
materials.  In the course of the manufacturing activity, waste paper/ broke
arises which are recycled in the manufacturing process by making pulp.
Sometimes, after entry in  the RG 1 register, the paper is found to  be
defective   and   incapable   of   being   sold   and   as   such   is   required   to   be
reprocessed and if that is not possible, then it is rejected and has to be repulped and recycled. 
8. The appellant had been paying duty on paper cleared from its factory.
The   rate   of   duty   of   paper   manufactured   from   conventional   and
unconventional   raw   material   differed.   The   appellants   availed   exemption
under Notification No.67/95­CE dated March 16, 1995 as to the duty in
respect of waste paper/ fresh broke.  By Notification No.6/2000­CE dated
March 1, 2000 complete exemption was granted in respect of paper up to
the   specified   quantitative   limit   manufactured   from   unconventional   raw
materials.   Upon   receipt   of   a   letter   dated   March   30,   2001   from   the
6
Superintendent of Central Excise, the Appellant examined the matter and
realized   the   mistake   committed   by   it   in   availing   the   exemption   under
Notification No.67.95­CE in respect of waste paper/ broke utilized in the
manufacture   of   paper   cleared   at   ‘nil'   rate   of   duty   under   Notification
No.6/2000­CE.   From May 2001 onwards, the appellant stopped availing
the exemption and started payment of duty on waste paper/broke.
9. The relevant period involved in the appeal  i.e.  July 2001 to March
2002.   The Appellant's assessments for this period were provisional and
these entries were finalized on 30.01.2003.   The provisional assessment
order was passed on 1.3.2002.  The appellant has claimed that at the time
of the said final assessment order dated 30.01.2003, it was not aware of the
notification No.10/96­CE or the said circular dated 1.3.2001 and as such,
no claim thereunder was made by it till that time nor was any such claim so
considered or decided in the said final assessment order.
10. On July 18, 2003, the appellant filed a refund claim for an amount of
Rs.28,73,120/­ in respect of the duty paid on the said waste paper/ broke
during the period from July 2001 to March 2002.  The said refund claim
was filed under section 11(b) of the Central Excise Act, 1944 (for short,
referred to as “the 1944 Act”) and within the statutory period of limitation.
11. A show cause notice was issued as to why the said claim be not
rejected to which a reply was filed.  The assessment committee rejected the
said claim.  The Commissioner of Appeals dismissed the appeal. Thereafter,
successive appeal was preferred before the Tribunal.   The Tribunal has
7
rejected the refund claim of the appellant. Hence, the appeal has been
preferred under section 35(b) of the 1944 Act.
12. In the case of Union of India & Ors. v. Micromax Informatics Ltd., the
respondents (i.e. Micromax Informatics Ltd.) had imported mobile handsets
including cellular phones during the period 30.07.2014 to 29.8.2014.   At
the time of customs clearance, they paid Additional Customs Duty (CVD)
under Section 3(1) of the Customs Tariff Act, 1975 at the rate of 6 %.  In all,
the imports bills of entry were self­assessed by the respondents in terms of
the Self­Assessment Scheme under section 17 of the Act and were thus
finally   assessed.   This   Court   in  M/s.   SRF   v.   Commissioner   of   Customs,
Chennai 2015 [318] ELT 607 (SC) held that for quantification of CVD in case
of an article that has been imported, it has to be presumed that the said
imported article has been manufactured in India and then the amount of
excise duty leviable thereon has to be ascertained for determining the extent
of exemption from payment of CVD to which the importer would be entitled.
The respondent had filed the refund claim of Rs.35.89 crores for duty totally
paid under the self­assessed bills of entry, under section 27 of the 1962 Act
in   the   Air   Cargo   Export   Commissionerate,   claiming   a   refund   of   the
Additional   Customs   Duty   (CVD)   in   view   of   Serial   Number   263   A   and
Condition No.16 of notification No.12/2002­Ex. Dated 17.03.2012 and for
the said Condition No.16, mobile handsets were chargeable to a duty of 1%
if no CENVAT credit had been availed by the importer.   The Micromax
claimed that they had  made excess  payment while  complying with  the
8
condition No.16 of the aforesaid notification.   They claimed the refund of
deferential duty of 5%.  The Assistant Commissioner (Refunds) rejected all
the   claims   as   not   maintainable   in   the   absence   of   evidence   of   excess
payment of duty.  He further held that the Bills of Entry had already been
assessed and there were assessment orders which could only be reviewed or
modified   in   appeal.   It   was   also   observed   that   the   respondent   failed   to
submit any reassessment order or speaking order under section 17(5) of the
1962 Act and that it was beyond the jurisdiction of the Refund Branch to
decide the issue on merits.  The officer considering a refund claim cannot
sit in appeal over an assessment made by a competent officer.  The High
Court held that self­assessment is not an assessment order  per se  and
allowed the writ petition. Hence the appeal by the Union of India.
13. In Commissioner of Customs, New Delhi v. Aman Medical Products Ltd.,
the respondents had imported cannula for the purpose of manufacture of
injection needles. At the time of filing of bills of entry, the respondent could
not indicate the benefits available under notification No.6/2002 Cus, dated
1.3.2002 which provided a concessional rate of duty on the imported goods.
The bills of entry were assessed finally. Subsequently, the respondent filed
an application for refund.   The refund claim was rejected by the Deputy
Commissioner.     The   respondent   preferred   an   appeal   before   the
Commissioner (Appeals) for grant of refund of excess duty paid by them.
The appeal was allowed by the Commissioner of Appeals.  The Department
filed an appeal before the Tribunal.   The Tribunal observed that refund
9
claim cannot be adjudicated on merits.   The respondent – Aman Medical
Products Ltd filed a writ petition before the High Court.  The writ petition
has been allowed.
14. Shri P. Chidambaram, learned senior counsel has taken us through
the definition of the ‘assessment’ as prevailed under the 1962 Act and the
amended definition under the Act, assessment w.e.f. 8.4.2011, Finance Act,
2011, Section 17 and Section 27 as amended by the Finance Act, 2011.  It
was urged by learned senior counsel that prior to the amendment by the
Finance Act, 2011, the scheme of assessment under section 17 of the
Customs Act was such that once a bill of entry was filed, examination and
testing of the imported goods were done by the proper officer.  Thereafter,
an   order   of   assessment   was   passed   after   the   physical   examination.
Accordingly, section 27 of the Customs Act provided that claim for refund to
be made by any person who had (a) paid duty in pursuance of an order of
assessment or (b) a person who had borne the duty.  Earlier, there was a
necessity for an order of assessment by a proper officer under section 17 of
the Customs Act.  After the amendment to the Act in 2011, there is no need
to get the assessment of bill of exchange done for claiming a refund of
excess duty paid under Section 27 of the Act, as now the bill of entry is to
be   self­assessed   by   the   importer   or   exporter   and   will   be   subject   to
verification.  Further, under section 17(4) of the Customs Act if it is found
that self­assessment of duty has not been done correctly by an importer or
exporter the proper officer, may re­assess the duty. In case of re­assessment
10
within fifteen days from the date of re­assessment under section 17(5), a
speaking order has to be passed by the proper officer. In the case of reassessment done under section 17(4), it is only in these circumstances an
order is passed.   If no order of assessment is passed in the case of selfassessment, the refund application can lie.   It was urged that section 27
has also been amended by way of amendment by the Finance Act, 2011. An
application for refund of duty and the requirement of order of assessment
that was requisite before the amendment has now been expressly removed.
It would be a retrograde step to interpret the amended provision otherwise
and to deny the refund claim which is not adjudicatory when the bill of
entry has been passed.  In the case of self­assessment, the duty paid under
a mistake can always be claimed without filing an appeal and in that event
concerned officer has to look into the matter whether the claim for refund
was justified.
15. Reliance has been placed on behalf of the assessee on SRF Limited vs.
Commissioner of Customs (supra).  It is not necessary to pass an order of
reassessment or speaking order under the amended provisions of section
17.  The decision in Priya Blue Industries v. Commissioner of Customs 2004
(172)   E.L.T.   145   (SC)   is   based   upon   the   unamended   provisions,   thus,
cannot hold the field and is inapplicable in view of the amendment made in
the provisions.  Under section 17(1) of the amended provisions, bills of entry
have to be self­assessed by importer or exporter.  The verification of the selfassessment has now been made optional.  The self­assessment is not to be
11
disturbed unless there is a verification required by the proper officer and for
this purpose, he may examine or test goods or part thereof.
16. It was further urged on behalf of the assessee that amended section
17 and section 27 are to be read together.  By amended section 27 it is now
provided that an application for refund of duty will be made by any person
who has paid the duty or by any person who has borne the duty.  Earlier
refund could be claimed by the person who has paid the duty.  Under the
post   amendment   provision   the   words   “in   pursuance   to   the   order   of
assessment” have been deleted and a refund claim is maintainable by the
assessee in case duty has been “paid by him”.  The legislative intent is clear.
Now the order of assessment has been made irrelevant and a re­assessment
to an order is no longer a pre­requisite for maintaining a refund claim. Now
under   the   scheme   of   self­assessment,   there   would   be   no   order   of
assessment by the proper officer. 
17. It was further urged on behalf of the assessee that section 27 cannot
be   rendered   otiose   or   redundant.     Section   27   does   not   contain   any
stipulation which may suggest that refunds can be filed only after the Bill of
Entry   has   been   appealed   against.   In   the   absence   of   such   a   statutory
condition, a restriction on refund claim cannot be imported into the statute.
Taxing statute has to be strictly interpreted and there is no room to infer
any intendment thereof as held by this  Court in Commissioner of Wealth
Tax, Gujarat III Ahmedabad v. Ellis Bridge Gymkhana, (1998) 1 SCC 384.
Reliance has also been placed on the decision of this Court in Maharashtra
12
State Financial Corporation v. Jaycee Drugs and Pharmaceuticals (P.) Ltd.
(1991) 1 SCC 637, O.P. Singla & Anr. v. Union of India & Ors., (1984) 4 SCC
450, and Union of India v. Popular Construction Co., (2001) 8 SCC 470.
18. It was also urged that section 27 is a remedy available to the assessee
for the refund of duty paid and section 28 is a remedy available to the
Department   on   the   recovery   of   duty   not   levied   and   short   levied   or
erroneously levied. Both the remedies can be availed without filing appeals.
It was further urged that no appeal can be filed under section 128 of the
Customs Act against the bill of entry. As the scheme of assessment under
Section 17 of the Customs Act is that of self­assessment and only when
such   a   self­assessment   is   disputed   by   the   proper   officer,   an   order   of
assessment   is   passed   then   he   may   appeal   to   the   relevant   appellate
authority within 60 days of the communication of the order.  It is only in a
situation where speaking order is passed then the assessee is required to
file an appeal.  Unless a speaking order of assessment is passed, no appeal
can lie and the only option for refund of duty paid is to file a refund claim.
The bill of entry is merely stamped to allow clearance of the goods. No
reasons are provided in the bill of entry on account of which it can be
regarded as an order which can be subjected to appeal under section 128 of
the Customs Act. The judgment of this Court in Commissioner of Customs v.
Sayed Ali (265) ELT 17 (SC) is not relevant.  The said judgment was passed
in respect of section 28 of the Customs Act.
19. On behalf of the Union of India/Department, it is contended that self­
13
assessment is an assessment.   It is not open to the proper officer after
accepting the self­assessment to entertain a claim for refund in the absence
of the self­assessment being questioned in the appeal.   The direction to
reassess the bill of entry after the expiry of more than a year cannot be
ordered.  Reliance has been placed on Collector of Central Excise, Kanpur v.
Flock (India) Pvt. Ltd., 2000 (120) ELT 285 (SC).   In the instant case, the
bills of entry were filed and they were self­assessed.  It is an assessment
under the Act and in case benefit of notification has not been claimed, in
the absence of challenge to assessment of bills of entry by way of filing the
appeal, the benefit of notification cannot be claimed.   An application for
refund is not maintainable in view of the law laid down by this Court in
Flock (India) Pvt. Ltd. (supra) and Priya Blue Industries  (supra).   Once the
self­assessment/assessment attains finality and has not been questioned, it
cannot be reopened at any point of time.   The refund claim is not an
appellate 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 an assessment order.  Even
after the amendment is made in 2011, the conditionality of payment having
been made pursuant to an order of assessment continue to exist.  As the
self­assessment of bills of entry is an order of assessment per se, unless the
order of assessment passed under section 2(2) of the Act is appealed before
Commissioner   of   Appeals   for   modification   no   claim   for   refund   can   be
entertained.  The provision of section 128 cannot be rendered otiose.  The
14
amendment has been made in order to simplify the procedure but the legal
effect of the self­assessment is that of assessment. While processing selfassessment some exercise has to be done.  Once it is accepted, it becomes
an order of assessment.
20. Right to appeal is available to any person i.e. to the department as
well as to importer/exporter against an order of self­assessment.  Until and
unless assessment order is modified and a fresh order of assessment is
passed and duty redetermined, the refund cannot be granted by way of
refund application.   The refund authorities cannot take over the role of
Assessing Officer. The officer considering refund claim cannot reassess an
assessment order.   An assessment order has to be questioned within the
stipulated   period   of   limitation.     The   refund   application   cannot   be
entertained directly under section 27 unless the order of assessment is
appealed against and is modified.
21. The   first   question   for   consideration   is   whether   the   assessment
includes self­assessment also. Prior to the amendment by the Finance Act,
2011 the assessment had been defined in Section 2(2) thus:
“2(2)   “assessment”   includes   provisional   assessment,
reassessment and any order of assessment in which the duty
assessed is nil;”
22. After the amendment of Section 2(2) made by the Finance Act, 2011
the definition of ‘assessment’ reads thus:
15
  "2(2)   "assessment"   includes   provisional  assessment,   selfassessment, reassessment and any assessment in which the
duty assessed is nil;"
23. It   is   apparent   from   the   amended   definition   that   self­assessment,
provisional assessment, re­assessment and any assessment in which the
duty   assessed   is   nil,   is   an   assessment.   Assessment   includes   selfassessment, when the provision of self­assessment has been incorporated
in Section 17(1), and corresponding change has been made in the definition
of assessment in Section 2(2). Earlier the word self­assessment was not
included in the definition of assessment.
24. The assessment of duty was provided in section 17 of the unamended
Act prior to 2011. Pre­amended section 17 of the Customs Act is extracted
hereunder:
“17. Assessment of duty.—(1)   After an importer has
entered any imported goods under section 46 or an exporter
has entered any export goods under section 50 the imported
goods or the export goods, as the case may be, or such part
thereof as may be necessary may, without undue delay, be
examined and tested by the proper officer.
(2)   After such examination and testing, the duty, if any,
leviable on such goods shall, save as otherwise provided in
section 85, be assessed.
(3)  For the purpose of assessing duty under sub­section (2),
the proper officer may require the importer, exporter or any
other person to produce any contract, broker’s note, policy of
insurance, catalogue or other document whereby the duty
leviable on the imported goods or export goods, as the case
may be, can be ascertained, and to furnish any information
required for such ascertainment which is in his power to
produce or furnish, and thereupon the importer, exporter or
16
such other person shall produce such document and furnish
such information.
(4)   Notwithstanding   anything   contained   in   this   section,
imported   goods   or   export   goods   may,   prior   to   the
examination or testing thereof, be permitted by the proper
officer to be assessed to duty on the basis of the statements
made   in   the   entry   relating   thereto   and   the   documents
produced and the information furnished under sub­section
(3); but if it is found subsequently on examination or testing
of the goods or otherwise that any statement in such entry or
document or any information so furnished is not true in
respect of any matter relevant to the assessment, the goods
may, without prejudice to any other action which may be
taken under this Act, be re­assessed to duty.
(5)   Where   any   assessment   done   under   sub­section   (2)   is
contrary to the claim of the importer or exporter regarding
valuation of goods, classification, exemption or concessions
of duty availed consequent to any notification therefor under
this Act, and in cases other than those where the importer or
the exporter, as the case may be, confirms his acceptance of
the said assessment in writing, the proper officer shall pass a
speaking   order   within   fifteen   days   from   the   date   of
assessment of the bill of entry or the shipping bill, as the
case may be.”
25. Section 17 as amended by Finance Act, 2011 is extracted hereunder:
“17. Assessment of duty. — (1) An  importer  entering
any   imported   goods   under   section   46,  or   an   exporter
entering any export goods under section 50, shall save as
otherwise provided in section 85, self­assess the duty, if any,
leviable on such goods.
(2) The proper officer may verify the self­assessment of such
goods and for this purpose,  examine or test any imported
goods   or   export   goods  or   such   part   thereof   as   may   be
necessary.
[(3)     For verification of self­assessment under sub­section (2),
the proper officer may require the importer, exporter or any
other   person  to   produce   any   document   or   information,
whereby the duty leviable on the imported goods or export
goods,   as   the   case   may   be,   can   be   ascertained   and
thereupon, the importer, exporter or such other person shall
produce such document or furnish such information.]
17
(4) Where it is found on verification, examination or testing of
the goods or otherwise that the self­assessment is not done
correctly, the proper officer  may, without prejudice to any
other action which may be taken under this Act,  re­assess
the duty leviable on such goods.
(5) Where any  re­assessment done under sub­section (4) is
contrary   to   the   self­assessment   done  by   the   importer   or
exporter regarding   valuation   of   goods,   classification,
exemption or concessions of duty availed consequent to any
notification issued therefor under this Act and in cases other
than those where the importer or exporter, as the case may
be, confirms his acceptance of the said  re­assessment in
writing, the proper officer shall pass a speaking order on the
re­assessment,   within   fifteen   days   from   the   date   of   reassessment of the bill of entry or the shipping bill, as the
case may be.
(6)  Where   re­assessment   has   not   been   done   or   a
speaking order has not been passed on re­assessment,  the
proper   officer   may   audit   the   assessment   of   duty   of   the
imported   goods   or   export   goods   at   his   office   or   at   the
premises of the importer or exporter, as may be expedient, in
such manner as may be prescribed.
Explanation.—For   the   removal   of   doubts,   it   is   hereby
declared that in cases where an importer has entered any
imported goods under section 46 or an exporter has entered
any export goods under section 50 before the date on which
the Finance Bill, 2011 receives the assent of the President,
such imported goods or export goods shall continue to be
governed   by   the   provisions   of   section   17   as   it   stood
immediately   before   the   date   on   which   such   assent   is
received.]”
(emphasis supplied)   
26. Section 27 deals with a claim for refund of duty. Provision of section 27
which   prevailed   before   amendment   by   Finance   Act,   2011   is   extracted
hereunder:
“27. (1) Any person claiming refund of any 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,   paid   on   such   duty   to   the   Assistant
18
Commissioner   of   Customs   or   Deputy   Commissioner   of
Customs­
(a) in the case of any import made by any individual for his
personal   use   or   by   Government   or   by   any   educational,
research   or   charitable   institution   or   hospital,   before   the
expiry of one year ;
(b) in any other case, before the expiry of six months,
from the date of payment of duty and interest, if any, paid on
such duty, in such form and manner as may be specified in
the regulations made in this behalf and the application shall
be   accompanied   by   such   documentary   or   other   evidence
(including the documents referred to in section 28C) as the
applicant may furnish to establish that the amount of duty
and interest, if any, paid on such duty in relation to which
such refund is claimed was collected from, or paid by, him
and the incidence of such duty and interest, if any, paid on
such duty had not been passed on by him to any other
person :
Provided that where an application for refund has been made
before   the   commencement   of   the   Central   Excises   and
Customs   Laws   (Amendment)   Act,   1991,   such   application
shall be deemed to have been made under this sub­section
and the same shall be dealt with in accordance with the
provisions of sub­section (2):
Provided   further   that   the   limitation   of   one   year   or   six
months, as the case may be, shall not apply where any duty
and interest, if any, paid on such duty has been paid under
protest:
Provided also that in the case of goods which are exempt
from payment of duty by a special order issued under subsection (2) of section 25, the limitation of one year or six
months, as the case may be, shall be computed from the
date of issue of such order.
[Provided also that where the duty becomes refundable as a
consequence of judgment, decree, order or direction of the
appellate   authority,   Appellate   Tribunal   or   any   court,   the
limitation of one year or six months, as the case may be,
shall be computed from the date of such judgment, decree,
order or direction.
Explanation I.­For the purposes of this sub­section, "the date
of payment of duty and interest, if any, paid on such duty",
in relation to a person, other than the importer, shall be
construed as "the date of purchase of goods" by such person.
Explanation II.­Where any duty is paid provisionally under
section 18, the limitation of one year or six months, as the
case may be, shall be computed from the date of adjustment
of duty after the final assessment thereof.
(emphasis supplied)”
19
27. The   provision   of   Section   27   of   the   Customs   Act   as   amended   by
Finance Act, 2011 is extracted hereunder:
“27.   Claim   for   refund   of   duty.   ­­  (1)   Any   person
claiming refund of any duty or interest, ­­
(a) paid by him; or
(b) borne by him,
may make an application in such form and manner as may
be prescribed for such refund to the Assistant Commissioner
of Customs or Deputy Commissioner of Customs, before the
expiry of one year, from the date of payment of such duty or
interest:
Provided that where an application for refund has been made
before the date on which the Finance Bill, 2011 receives the
assent of the President, such application shall be deemed to
have been made under sub­section (1), as it stood before the
date on which the Finance Bill, 2011 receives the assent of
the President and the same shall be dealt with in accordance
with the provisions of sub­section (2):
Provided further that the limitation of one year shall not
apply   where   any   duty   or   interest   has   been   paid   under
protest.
Provided also that where the amount of refund claimed is
less   than   rupees   one   hundred,   the   same   shall   not   be
refunded.
Explanation. ­­ For the purposes of this sub­section, “the
date of payment of duty or interest'' in relation to a person,
other than the importer, shall be construed as “the date of
purchase of goods” by such person.
(1A)   The   application   under   sub­section   (1)   shall   be
accompanied   by   such   documentary   or   other   evidence
(including the documents referred to in section 28C) as the
applicant may furnish to establish that the amount of duty
or interest, in relation to which such refund is claimed was
collected from, or paid by, him and  the incidence of such
duty or interest, has not been passed on by him to any other
person.
(1B) Save as otherwise provided in this section, the period of
limitation of one year shall be computed in the following
manner, namely: ­­
(a) in the case of goods which are exempt from payment of
duty   by   a   special   order   issued  under   sub­section   (2)   of
section 25, the limitation of one year shall be computed from
the date of issue of such order;
(b) where the duty becomes refundable as a consequence of
any  judgment,  decree,  order  or  direction   of  the  appellate
20
authority, Appellate Tribunal or any court, the limitation of
one year shall be computed from the date of such judgment,
decree, order or direction;
(c) where any duty is paid provisionally under section 18, the
limitation of one year shall be computed from the date of
adjustment of duty after the final assessment thereof or in
case of re­assessment, from the date of such re­assessment.]
(2)   If,   on   receipt   of   any   such   application,   the   Assistant
Commissioner   of   Customs   or   Deputy   Commissioner   of
Customs is satisfied that the whole or any part of the duty
and interest, if any, paid on such duty paid by the applicant
is refundable, he may make an order accordingly and the
amount so determined shall be credited to the Fund:
Provided that the amount of duty and interest, if any, paid
on such duty as determined by the Assistant Commissioner
of Customs or Deputy Commissioner of Customs under the
foregoing   provisions   of   this   sub­section   shall,   instead   of
being credited to the Fund, be paid to the applicant, if such
amount is relatable to­
(a) the duty and interest, if any, paid on such duty paid by
the importer [or the exporter, as the case may be], if he had
not passed on the incidence of such duty and interest, if any,
paid on such duty to any other person;
(b)   the   duty   and   interest,   if   any,   paid   on   such   duty   on
imports made by an individual for his personal use ;
(c) the duty and interest, if any, paid on such duty borne by
the buyer, if he had not passed on the incidence of such duty
and interest, if any, paid on such duty to any other person;
(d) the export duty as specified in section 26;
(e) drawback of duty payable under sections 74 and 75;
(f) the duty and interest, if any, paid on such duty borne by
any   other   such   class   of   applicants   as   the   Central
Government   may,   by   notification   in   the   Official   Gazette,
specify:
(g) the duty paid in excess by the importer before an order
permitting clearance of goods for home consumption is made
where­­
(i) such excess payment of duty is evident from the bill of
entry in the case of self­assessed bill of entry; or
(ii) the duty actually payable is reflected in the reassessed
bill of entry in the case of reassessment.
Provided further that no notification under clause (f) of the
first proviso shall be issued unless in the opinion of the
Central Government the incidence of duty and interest, if
any,  paid  on such  duty has  not  been  passed  on  by the
persons concerned to any other person.
21
(3)  Notwithstanding anything to the contrary contained in
any judgment, decree, order or direction of the Appellate
    Tribunal, the National Tax Tribunal or any Court or in any
other   provision   of   this   Act   or   the   regulations   made
thereunder or any other law for the time being in force, no
refund shall be made except as provided in sub­section (2).
(4) Every notification under clause (f) of the first proviso to
sub­section (2) shall be laid before each House of Parliament,
if it is sitting, as soon as may be after the issue of the
notification, and, if it is not sitting, within seven days of its
re­assembly, and the Central Government shall, seek the
approval of Parliament  to the notification by a resolution
moved within a period of fifteen days beginning with the day
on which the notification is so laid before the House of the
People   and   if   Parliament   makes   any   modification   in   the
notification or directs that the notification should cease to
have effect, the notification shall thereafter have effect only
in such modified form or be of no effect, as the case may be,
but without prejudice to the validity of anything previously
done thereunder.
(5) For the removal of doubts, it is hereby declared that any
notification issued under clause (f) of the first proviso to subsection   (2),   including   any   such   notification   approved   or
modified  under  sub­section  (4), may be  rescinded  by  the
Central Government at any time by notification in the Official
Gazette."
(emphasis supplied)
28. Section 28 deals with the recovery of duties not levied or not paid or
short levied or short paid or erroneously refunded. Section 28(1) is extracted
hereunder:
“28. Recovery of duties not levied or not paid or shortlevied or short­paid or erroneously refunded.­­ (1) Where any
duty has not been levied or not paid or has been short­levied
or   short­paid   or   erroneously   refunded,   or   any   interest
payable   has   not   been   paid,   part­paid   or   erroneously
refunded, for any reason other than the reasons of collusion
or any wilful mis­statement or suppression of facts,­­
(a) the proper officer shall, within two years from the relevant
date, serve notice on the person chargeable with the duty or
interest which has not been so levied or paid or which has
been short­levied or short­paid or to whom the refund has
22
erroneously been made, requiring him to show cause why he
should not pay the amount specified in the notice;
Provided that before issuing notice, the proper officer shall
hold pre­notice consultation with the person chargeable with
duty or interest in such manner as may be prescribed;
(b) the person chargeable with the duty or interest, may pay
before service of notice under clause (a) on the basis of,­­
(i) his own ascertainment of such duty; or
(ii) the duty ascertained by the proper officer,
the amount of duty along with the interest payable thereon
under section 28AA or the amount of interest which has not
been so paid or part­paid:
Provided that the proper officer shall not serve such show
cause notice, where the amount involved is less than rupees
one hundred.”                                       
   (emphasis supplied)
29. The first question for consideration is whether in the case of selfassessment without passing a speaking order, it can be termed to be an
order of self­assessment. It was urged on behalf of the assesses that there is
no   application   of   mind   and   merely   an   endorsement   is   made   by   the
authorities concerned on the bill of entry which cannot be said to be an
order much less a speaking order.
30. In  Escorts Ltd. v. Union of India & Ors. (1994) Supp. 3 SCC 86 the
question   arose   for  consideration   as   to   the   Bill   of   Entry   classifying  the
imported goods under a certain tariff item and paying the duty thereon.
This   Court  held   that   in   such   a   case   signing  of   the   bill   of   entry  itself
amounted   to   passing   an   order   of   assessment.   Hence,   the   application
seeking a refund on the ground that imported goods fell under a different
item attracting a far lower rate of duty, having been filed more than six
months after the payment of duty, was rightly rejected as time­barred. What
is of significance is that an entry made in the bill of entry has been held to
23
be an order of assessment passed by the Assessing Officer. This Court
considered the provisions of sections 47 and 17 of the Customs Act and has
observed:
“9. Reading Sections 47 and 17 together, it is clear
beyond any doubt, that as soon as the bill of entry is filed,
the proper officer examines the goods, tests them, assesses
the proper duty and permits clearance of goods only after the
duty and other charges, if any, are paid. In the scheme of the
Act, there is no room for contending that any goods will be
allowed   to   be   cleared   without   assessment   of   the   duty,
whether provisional or final, as the case may be.
10.  Now it may be noticed that the Act does not prescribe
any particular form in which the order of assessment is to be
made.   In   the   very   nature   of   things,   no   formal   order   of
assessment can be expected when there is no dispute as to
the classification or the rate of duty. No formal order can be
expected in such a case, it is more like ‘across­the­counter'
affair.  In the  present   case,  it  may be  reiterated  that  the
appellant himself classified the goods under tariff item No.
73.33/40   and   paid   the   duty   at   the   rate   applicable
thereunder. At that stage, he did not raise any dispute either
as  to  classification or  as to the  right   of  duty  applicable.
Hence, there was no occasion for passing a formal order
since   there   was   no   lis   at   that   stage.   The   bill   of   entry
presented by the appellant was signed, signifying approval by
the assessing officer. That itself is an order of assessment in
such a situation. We are, therefore, not prepared to agree
that   there   is   no   order   of   assessment   in   this   case,   and
therefore,  the limitation  prescribed in Section 27 did  not
begin to run. Section 27 is emphatic in language. It says that
an application for refund of duty shall be made before the
expiry of six months from the date on which the duty was
paid. In the face of this provision, the authorities under the
Act, including the Government of India, had no option but to
dismiss   the   appellant’s   application.  This   is   also   the   view
taken by this Court in Madras Rubber Factory Ltd. v. Union
of India (1976) 2 SCC 255.”
(emphasis supplied)
31. It is apparent from the aforesaid discussion that the endorsement made
on the bill of entry is an order of assessment. It cannot be said that there is
24
no   order  of   assessment   passed   in   such   a   case.   When   there   is   no  lis,
speaking order is not required to be passed in “across the counter affair”.
 32. Coming to the procedure of assessment of duty as prevailed before the
amendment of the Act prior to the amendment made in section 17(1) by the
Finance Act of 2011, the imported goods or exported goods were required to
be examined and tested by the proper officer. After such examination, he
had to make an assessment of the duty, if any, leviable on these goods.
Under sub­section (3) of section 17, the proper officer was authorized to
require the importer, exporter or any other person to produce any contract,
broker's note or any other document as specified in the proviso and to
furnish   any   required   information.   Notwithstanding   that   the   statements
made in the bill of entry relating thereto and the documents produced and
the   information   furnished   under   sub­section   (3);   but   if   it   was   found
subsequently on examination or testing of the goods or otherwise that any
statement in such bill of entry or document or any information so furnished
was not true, he could have proceeded to reassess the duty. Where the
assessment done  under sub­section  (2)  is contrary to  the  claim of the
importer   or   exporter   regarding   valuation   of   the   goods,   classification,
exemption or concession, speaking order shall be passed within 15 days
from the date of assessment of the bill of entry or the shipping bill as the
case may be as provided in section 17(5).
33. Under the provisions of section 17 as amended by Finance Act of
2011, section 17(1) has provided to self­assess the duty if any leviable on
25
such goods by importer or exporter as the case may be. Self­assessment is
an assessment as per the amended definition of section 2(2). It is further
provided that proper officer may verify the self­assessment of such goods,
and for this purpose, examine or test any imported goods or exported goods
or   such   part   thereof   as   may   be   necessary.   The   power   to   verify   selfassessment lies with the proper officer and for that purpose under section
17(3), he may require the importer, exporter or any other person to produce
such document and furnish such information, etc. If the proper officer on
verification has found on examination or testing of the goods or as part
thereof or otherwise that the self­assessment is not done correctly,   the
proper officer may, without prejudice to any other action which may be
taken under the Act, may proceed to re­assess the duty leviable on such
goods.   Section   17(5)   of   the   Act   as   amended   provides   that   where   reassessment done under sub­section 17(4) is contrary to the assessment
done by the importer or exporter regarding the matters specified therein, the
proper officer has to pass a speaking order on the re­assessment, within 15
days from the date of reassessment of the bill of entry or the shipping bill,
as the case may be. The explanation to amended section 17 has clarified
that import or export before the amendment by Finance Act, 2011 shall be
governed by unamended provisions of section 17.
34. Section 18 deals with the provisional assessment of duty where the
importer or exporter is unable to make self­assessment or the proper officer
deem it necessary to subject any imported or export goods to any chemical
26
or other tests; or where further inquiry is deemed necessary by the proper
officer.
35. Section   27   of   the   Act   prior   to   amendment   by   Finance   Act,   2011
provided for refund procedure. Any person could claim a refund of duty and
interest if any paid on such duty. Refund of duty and interest if any paid
pursuant   to   the   order   of   assessment   or   borne   by   him,   may   make   an
application   for   refund   of   such   duty   to   the   Assistant   Commissioner   of
Customs or Deputy Commissioner of Customs within one year in the case of
any import made by any individual for his personal use or by Government
or by any educational, research or charitable institution or hospital. In any
other case before the expiry of six months from the date of payment of duty
and interest. He has to further satisfy that he has not passed on such
liability to any other person. The limitation of one year or six months shall
not apply where any duty and interest has been paid under protest. It is
made clear by the second proviso to section 27 that in case of refund
becomes necessary as a consequence of judgment, decree, order or direction
of the appellate authority, Appellate Tribunal or any court, the limitation of
one year or six months shall commence from the date of such judgment,
decree, order or direction.
36. Section 27 of the Customs Act as amended by Finance Act, 2011
provides that any person claiming refund of any duty or interest paid or
borne by him, may make an application in such form and manner as may
be prescribed for such refund to the Assistant or Deputy Commissioner of
27
Customs before the expiry of one year from the date of payment of such
duty or interest. If an application for refund has been made before Finance
Bill received the assent of the President, it is deemed to be filed under the
provision of section 27 (1) as existed and to be dealt with under section
27(2).   The period of limitation of one year provided by the provisions of
section 27 has to be computed in the case of goods which are exempt from
payment of duty by a special order issued under section 25(2) from the date
of issue of such an order as provided in section 27(1B)(a). Where the duty
becomes refundable as a consequence of any judgment, decree, order or
direction of the appellate authority, Appellate Tribunal or any Court, the
limitation of one year shall be computed from the date of such judgment,
decree, order or direction. It is provided in Section 27(1B)(c) that where any
duty is paid provisionally under Section 18, the limitation of one year shall
be computed from the date of adjustment of duty after the final assessment
thereof   or   in   the   case   of   re­assessment,   from   the   date   of   such   reassessment. The second proviso to section 27 makes it clear that limitation
of 1 year shall not apply where any duty or interest has been paid under
protest. 
37. Under Section 27(2)(a) it is incumbent upon the applicant to satisfy
that the amount of duty or interest of which refund has been claimed, had
not   been   passed   by   him   to   any   other   person,   the   provision   aims   at
preventing unjust enrichment.
28
38. No  doubt  about  it  that the  expression  which   was  earlier  used  in
Section 27(1)(i) that “in pursuance of an order of assessment” has been
deleted from the amended provision of Section 27 due to introduction of
provision as to self­assessment. However, as self­assessment is nonetheless
an  order of assessment, no difference is made by deletion of aforesaid
expression as no separate reasoned assessment order is required to be
passed in the case of self­assessment as observed by this Court in Escorts
Ltd. v. Union of India & Ors. (supra).
39. In  Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. 2000
(120) ELT 285 (SC)= (2000) 6 SCC 650, the question which came up for
consideration before this Court was non­challenge of an appealable order
where the adjudicating authority had passed an order which is appealable
under the statute, and the party aggrieved did not choose to file an appeal.
This Court held that 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 the order. The provisions of the Central Excise Act, 1944
came up for consideration. The Court has observed:
“10. Coming to the question that is raised, 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 its order.  If this position is
29
accepted then the provisions for adjudication in the Act and
the Rules, the provision for appeal in the Act and the Rules
will   lose   their   relevance   and   the   entire   exercise   will   be
rendered   redundant.  This   position,   in   our   view,   will   run
counter   to   the   scheme   of   the   Act   and   will   introduce   an
element   of   uncertainty   in   the   entire   process   of   levy   and
collection   of   excise   duty.  Such   a   position   cannot   be
countenanced. The view was taken by us also gains support
from the provision in sub­rule (3) of Rule 11 wherein it is laid
down that whereas a result of any order passed in appeal or
revision under the Act, refund of any duty becomes due to
any person, the proper officer may refund the amount to
such person without his having to make any claim in that
behalf. The provision indicates the importance attached to an
order of the appellate or revisional authority under the Act.
Therefore, if an order which is appealable under the Act is
not challenged then the order is not liable to be questioned
and the matter is not to be reopened in a proceeding for the
refund   which,   if   we  may   term   it   so,   is   in   the   nature   of
execution of a decree/order. In the case at hand, it was
specifically mentioned in the order of the Assistant Collector
that the assessee may file an appeal against the order before
the Collector (Appeals) if so advised."         
 (emphasis supplied)
40. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive)
2004   (172)   ELT   145   (SC)=   (2005)   10   SCC   433,   the   Court   considered
unamended   provision   of   Section   27   of   the   Customs   Act   and   a   similar
submission was raised which was rejected by this Court observing that so
long as the order of assessment stands, the duty would be payable as per
that order of assessment. This Court has observed thus:
  "6. We are unable to accept this submission. Just such a
contention has been negatived by this Court in Flock (India)
case (2000) 6 SCC 650.  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
30
competent officer. The officer considering the refund claim
cannot also review an assessment order.
7. We also see no substance in the contention that provision
for a period of limitation indicates that a refund claim could
be  filed  without  filing  an appeal.  Even  under  Section  11
under the Excise Act, the claim for refund had to be filed
within a period of six months.  It was still held, in Flock
(India)’s case (supra), that in the absence of an appeal having
been filed no refund claim could be made.
8. The words "in pursuance of an order of assessment" 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 the 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."
(emphasis supplied)
41. It is apparent from provisions of refund that it is more or less in the
nature of execution proceedings. It is not  open to  the authority which
processes the refund to make a fresh assessment on merits and to correct
assessment on the basis of mistake or otherwise.
42. It   was   contended   that   no   appeal   lies   against   the   order   of   selfassessment.     The   provisions   of   Section   128   deal   with   appeals   to   the
Commissioner (Appeals). Any person aggrieved by any decision or order may
appeal to the Commissioner (Appeals) within 60 days. There is a provision
for condonation of delay for another 30 days. The provisions of Section 128
are extracted hereunder:
“128. Appeals to [Commissioner (Appeals)]. ­­ (1) Any
person aggrieved by any decision or order passed under this
Act by an officer of customs lower in rank than a [Principal
Commissioner of Customs or Commissioner of Customs] may
appeal to the [Commissioner (Appeals)] [within sixty days]
from the date of the communication to him of such decision
or order:
31
[Provided   that   the   Commissioner   (Appeals)   may,   if   he   is
satisfied that the appellant was prevented by sufficient cause
from presenting the appeal within the aforesaid period of
sixty days, allow it to be presented within a further period of
thirty days.]
 [(1A) The Commissioner (Appeals) may, if sufficient cause is
shown, at any stage of hearing of an appeal, grant time, from
time to time, to the parties or any of them and adjourn the
hearing of the appeal for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more
than three times to a party during hearing of the appeal.]
(2) Every appeal under this section shall be in such form and
shall be verified in such manner as may be specified by rules
made in this behalf."
43. As the order of self­assessment is nonetheless an assessment order
passed under the Act, obviously it would be appealable by any person
aggrieved thereby. The expression ‘Any person' is of wider amplitude. The
revenue, as well as assessee, can also prefer an appeal aggrieved by an
order of assessment. It is not only the order of re­assessment which is
appealable but the provisions of Section 128 make appealable any decision
or order under the Act including that of self­assessment. The order of selfassessment is an order of assessment as per section 2(2), as such, it is
appealable   in   case   any   person   is   aggrieved   by   it.   There   is   a   specific
provision made in Section 17 to pass a reasoned/speaking order in the
situation   in   case   on   verification,   self­assessment   is   not   found   to   be
satisfactory, an order of re­assessment has to be passed under section
17(4). Section 128 has not provided for an appeal against a speaking order
but against “any order” which is of wide amplitude. The reasoning employed
by the High Court is that since there is no lis, no speaking order is passed,
32
as such an appeal would not lie, is not sustainable in law, is contrary to
what has been held by this Court in Escorts (supra).
44. The provisions under section 27 cannot be invoked in the absence of
amendment or modification having been made in the bill of entry on the
basis of which self­assessment has been made. In other words, the order of
self­assessment is required to be followed unless modified before the claim
for refund is entertained under Section 27. The refund proceedings are in
the nature of execution for refunding amount. It is not assessment or reassessment proceedings at all. Apart from that, there are other conditions
which   are   to   be   satisfied   for   claiming   exemption,   as   provided   in   the
exemption notification. Existence of those exigencies is also to be proved
which cannot be adjudicated within the scope of provisions as to refund.
While processing a refund application, re­assessment is not permitted nor
conditions of exemption can be adjudicated. Re­assessment is permitted
only under Section 17(3)(4) and (5) of the amended provisions. Similar was
the position prior to the amendment. It will virtually amount to an order of
assessment or re­assessment in case the Assistant Commissioner or Deputy
Commissioner   of   Customs   while   dealing   with   refund   application   is
permitted to adjudicate upon the entire issue which cannot be done in the
ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union
of India  2009 (240) ELT 490 (Bom.) though the High Court interfered to
direct the entertainment of refund application of the duty paid under the
33
mistake of law. However, it was observed that amendment to the original
order of assessment is necessary as the relief for a refund of claim is not
available as held by this Court in Priya Blue Industries Ltd. (supra).
45. Reliance was also placed on a decision of Rajasthan High Court with
respect to service tax in Central Office Mewar Palace Org. v. Union of India
2008 (12) STR 545 (Raj.). In view of the aforesaid discussion, we are not
inclined to accept the reasoning adopted by the High Court, that too is also
not under the provisions of the Customs Act.
46. The decision in  Intex Technologies (India) Ltd. v. Union of India  has
followed Micromax (supra). The reasoning employed by the High Courts of
Delhi and Madras does not appear to be sound. The scope of the provisions
of refund under Section 27 cannot be enlarged. It has to be read with the
provisions of Sections 17, 18, 28 and 128. 
47. When   we   consider   the   overall   effect   of   the   provisions   prior   to
amendment and post­amendment under Finance Act, 2011, we are of the
opinion that the claim for refund cannot be entertained unless the order of
assessment or self­assessment is modified in accordance with law by taking
recourse to the appropriate proceedings and it would not be within the ken
of Section 27 to set aside the order of self­assessment and reassess the duty
for making refund; and in case any person is aggrieved by any order which
would include self­assessment, he has to get the order modified under
Section 128 or under other relevant provisions of the Act. 
34
48. Resultantly, we find that the order(s) passed by Customs, Excise, and
Service Tax Appellate Tribunal is to be upheld and that passed by the High
Courts of Delhi and Madras to the contrary, deserves to be and are hereby
set aside. We order accordingly. We hold that the applications for refund
were not maintainable. The appeals are accordingly disposed of. Parties to
bear their own costs as incurred.       
 
…………………………. J.
(Arun Mishra)
…………………………. J.
(Navin Sinha)
…………………………. J.
        (Indira Banerjee)
New Delhi;
September 18, 2019.