JUDGMENT

B.N. MAHAPATRA, J. : The present appeal has been directed under Section 130 of the Customs Act, 1962 (in short, “the Act, 1962”) against the order dated 05.07.2012 passed by the Customs, Excise & Service Tax Appellate Tribunal (for short, “CESTAT”), East Zonal Bench, Kolkata in Customs Appeal No.C/174/2011.

2.Appellant’s case in a nut-shell is that the appellant carries on business in manufacturing iron, steel and allied products. Low Ash Meterological Coke (in short, “LAM Coke”) is used as raw material for manufacture of the above finished products. To manufacture the said LAM coke, the appellant had installed Coke Oven Plant inside its factory premises. Coking coal is used as raw material for manufacture of LAM Coke, which the appellant procures mostly from imported sources. According to the appellant, coking coal is classified under Tariff item “27011910” of the Customs Tariff Act, 1975 (for short, “Tariff Act, 1975”). The tariff rate of duty is 5% ad valorem. However, it is exempted from payment of customs duty vide Notification No.21/CSU-2002 dated 01.03.2002. On 26.09.2008 the appellant had entered into a contract with an overseas supplier for purchase of 50,000 M.T. of century PCI coal (Century Semi Soft Coking Coal). Upon arrival of the vessel at the destination port, i.e. Paradeep, the appellant filed the Bill of Entry (B/E) on 10.10.2008 for assessment and clearance of imported consignment for home consumption. In the said B/E, the rate of Custom duty was claimed as ‘Nil’ in terms of above Notification dated 01.03.2002. Pending submission of original documents, demurrag details and the BRC, the B/E was assessed provisionally by the Customs House, Paradeep. While provisionally assessing the B/E, the Superintendent of Customs has suo motu changed the classification of imported goods from ‘27011910 to ‘27011990’ and also the duty liability from ‘Nil’ to ‘5%’ without extending the benefit under notification dated 01.03.2002 and without considering the explanation furnished by the appellant vide its letters dated 22.10.2008 and 27.10.2008. In order to clear the imported goods from Custom’s custody for the intended purpose, the appellant had no option, but to pay the provisional assessed duty under protest on 04.11.2008. Subsequent to payment of the duty under protest, the appellant has lodged the refund claim. In the application for refund, the detailed justifications were furnished in favour of classification of imported coking coal under Chapter 27011910 instead of 27011990. The said refund application was returned by the Customs Department under the cover letter dated 04.02.2009 stating that the B/E has not been received in the refund section after final assessment and accordingly, the appellant was requested to re-submit the application after final assessment of the B/E. After lapse of more than 1½ years from the date of payment of duty under protest, the Customs Superintendent (Import) vide letter dated 10.03.2010 had informed the appellant that the B/E has been assessed finally. Consequent upon resubmission of the refund application, the Assistant Commissioner of Customs has issued a show-cause notice dated 02.08.2010, proposing for rejection of the refund application. The refund application filed by the appellant has been rejected vide refund order dated 24.09.2010. Hence the present appeal.

3.Mr. S.K. Mohanty, learned counsel appearing for the appellant vehemently argued that the learned Tribunal has rejected the refund claim relying on a decision of the Hon’ble Supreme Court in the case of Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive), (2005) 10 SCC 433 wherein it is held that if assessment finalized in B/E is not challenged by filing appeal, the claim for refund made under Section 27 of the Act, 1962 would not be maintainable. Mr. Mohanty further submitted that since no assessment