Per Jeet Ram Kait : This appeal is directed against the order in appeal No. 606/2001 dated 27/9/2001, by which the Ld. Commissioner has held that it was not open to the assessee to question the correctness or otherwise of the order of assessment subsequently by filing the claim of refund. He therefore, upheld the order of the lower authority by rejecting the refund claim.

2. Ld. Advocate Shri N. Venkataraman submits that they had filed the refund claim before the Ld. Asst. Commissioner (Refunds) on 6.11.00 and the duty was paid on 10.05.00 and the refund claim was filed within time. This fact is also admitted by the Asst. Commissioner (refund) in his order dated 30.12.00. He also submits that the lower adjudicating authority had rejected the refund claim on the ground that the appellant had not produced any other document except the bill of entry in order to process the refund claim. Whereas, the Ld. Commissioner (Appeals) has rejected their appeal on a different ground by saying that since the assessment was not challenged by them, the refund claim is not maintainable. In this connection, the Ld. Advocate invites our attention to the judgment rendered by the Apex Court in the case of Karnataka Power Corporation Ltd. Vs. CC (Appeals) Chennai, reported in 2002 (143) ELT 482 (SC), wherein the Apex Court has held that there is no question of the appellants seeking amendment before the Assistant Collector of Customs himself and it was in that light that the issue had to be decided and the Tribunal had misdirected itself on this issue. The Apex Court had set aside the order of the Assistant Collector of Customs, the Collector (Appeals) and of the Tribunal and the matter was restored to the Asst. Collector of Customs to decide the matter afresh on the basis of the claim of the Appellants. He has also invited our attention to the judgment rendered by the East Zonal Bench, Calcutta, in the case of MECON Ltd. Vs. CC, Calcutta reported in 2003 (55) RLT 219 (CEGAT-Kol.), wherein it has been held that the Supreme Court judgment in the case of M/s. Flock India Pvt. Ltd. is not applicable to refund claim under Section 27 of Customs Act, 1962. It was also held that the refund claim of excess duty paid as per the assessment of bill of entry is entertainable though assessment is not challenged by filing appeal against it. It was also held that the filing of refund claim amounts to seeking re-assessment of bill of entry. He further, submitted that the Supreme Court judgment rendered in the case of CCE, Kanpur Vs. Flock India Pvt. Ltd. reported in 2000 (40) RLT 131 (SC) was distinguished by the Hon'ble Tribunal in the case of MECON Ltd. Vs. CC, Calcutta reported supra. He, therefore, submits that the matter may be sent back to the original authority for deciding the refund claim as well as the classification of their product.

3. Ld. DR Shri C. Mani, has perused the judgments and left the matter to be decided by the Bench.

4. We have considered the submissions made by both the sides and are of the considered view that when a refund claim is filed by the assessee by not accepting the classification and rate of duty etc., mentioned in the bill of entry, such refund claim is entertainable because the assessment also gets challenged by filing such refund claim. Therefore, by respectfully following the judgments rendered by the Apex Court in the matter of Karnataka Power Corporation Ltd. Vs. CC (Appeals) Chennai, which was followed by the EZB, Calcutta in the case of MECON Ltd. Vs. Calcutta (supra), we do not agree with the findings of the Ld. Commissioner and remand the matter to the lower adjudicating authority for processing the refund claim as it is not necessary that the assessment should have been challenged by filing appeal against the assessment because the refund claim itself is a challenge to the assessment order passed by the department. We therefore, set aside the impugned order and remand the matter to the lower adjudicating authority t