The duty can be paid only on account of the assessment by the assessing officer and should be in accordance with law and on the goods factually imported. The conditions for claiming refund of excess duty and the authority of the proper officer to permit the amendment of the Bill of Entry are crucial in determining the maintainability of the claim for refund.

Jaswant Singh, J.

1. Present appeal under Section 130 of the Customs Act, 1962 (for short the Act) has been filed by the appellant-importer/assessee seeking quashing of the order dated 5-2-2009 (Annexure A/6) passed by Customs Excise and Service Tax Appellate Tribunal, New Delhi (for short the Tribunal) whereby the claim of refund on excess duty paid has been declined.

2. The facts emerging out of the present appeal are that appellant-importer/assessee imported heavy melting scrap under Custom Tariff Heading No. 7204.90 of the Customs Tariff Act. Six bills of entry in respect of said import were assessed to duty on the basis of respective invoices and appellant-importer/assessee deposited duty on 7-8- 2007. However, on physical examination and weighment by the Assessing Officer on 28-8-2007, the actual weight of the consignment was found short to the tune of 15.09 MT. Accordingly, the appellant-importer/assessee filed 6 refund claims on 3-11-2007 under Section 27 of the Act in respect of six bills of entry as the actual weight of imported material was less than the declared weight and appellant-importer/assessee had paid excess duty. The Assistant Commissioner of Customs allowed the said refund application of the appellant-importer/assessee vide orders dated 31-12-2007 (Annexure A/3) on the ground that the material received was less than shown in the bills of entry and that the Superintendent Central Excise Range, Mandi Gobindgarh had certified that the appellant- importer/assessee had availed Cenvat credit less than duty deposited by it. It was also found that the refund claims were within time and no unjust enrichment was involved.

3. The order passed by the Assessing Officer was challenged by the respondent-revenue by filing appeal before the Commissioner (Appeals) Customs and Central Excise, Chandigarh, inter alia , on the ground that once the assessment order has been passed and the goods have been cleared out of the Customs charge, the only option available to the appellant-importer/assessee was to challenge the assessment order. It was further alleged that the Assistant Commissioner having passed the assessment order could not decide refund matter arising out of his own assessment order. The appeal filed by the respondent-revenue was contested by the appellant-importer/assessee. The learned Commissioner (Appeals) after hearing both sides vide order dated 27-6-2008 allowed the appeal filed by the respondent-revenue holding that assessment orders having neither been challenged nor reviewed nor modified in appeal, the same had attained finality and further that the Assistant Commissioner himself could not decide the refund matter arising out of his own assessment order. Accordingly, the appeals filed by the Revenue were allowed, sanction of refunds of duty were held to be erroneous and the six Order-in-Originals passed by the Assistant Commissioner were set aside.

4. Aggrieved against the order passed by the Commissioner (Appeals) the appellant-importer/assessee preferred appeals before the learned Tribunal. The learned Tribunal, relying upon the decision of Hon#25;ble the Supreme Court rendered in Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.) and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) - 2004 (172) E.L.T. 145 (S.C.), dismissed the appeals filed by the appellant-importer/assessee vide impugned order dated 5-2-2009. Hence the present appeal.

5. Heard learned counsel for the parties and perused the paper book.

6. Learned counsel for the appellant-importer/assessee submits that in view of the scheme of the Act and provisions of Sections 17, 27 and 149 and admitted fact that the excess duty on the imported goods had been paid and collected, the claim of the appellant for refund of excess duty cannot be declined on the basis that no challenge was made to the assessment order passed by the Assessing Officer which had attained finality or the Asses