Per K.K. Bhatia :

The appellants imported recycled plastic granules falling under tariff heading 3901.10 of the customs tariff. The goods were cleared by paying the customs duty at the appropriate rates under seven Nos. Bills of Entry dated 19.1.98 to 12.3.98 at ICD Tughalakabad, New Delhi. The importers however, filed refund claim of Rs. 10,56,518/- under Section 27 of the Customs Act, 1962. In the refund claim the party contended that they were entitled to the benefit of Notification No. 4/97 dated 1.4.97 as the plastic material imported by them is falling under chapter 39 and it is produced out of scrap/waste falling under chapters 9, 54, 55, 59, 64 or 85. The Assistant Commissioner (Customs) vide his order dated 30.7.98 rejected the refund claim by observing that the Bills of Entry had been finally assessed by the department and the claimant had paid duty accordingly. He observed that where a duty has been collected under a particular order which has become final, the refund of duty cannot be claimed unless such order is set aside according to law. So long as that order stands, the duty cannot be recovered back nor can any claim of its refund be entertained.

2. The party filed an appeal against the above order but the Commissioner of Customs (Appeals), New Delhi rejected their appeal vide his order dated 26.3.2001. The appellate authority relied on the judgment of the Supreme Court in the case of M/s. Mafat Lal Industries Vs. Union of India 1996 (17) RLT 907 (SC-L.B.)=1997 (89) ELT 247 (SC) and another judgment of Supreme Court in CCE Kanpur Vs. M/s. Flock (India) Pvt. Ltd., 2000 (40) RLT 131 (SC)=2000 (120) ELT 285 (SC).

3. This appeal is against impugned order of Commissioner (Appeals). The appellants are not represented despite notice dated 2.7.2001 sent to them and to their learned counsel both of which as per the record are duly delivered. There is no communication from the appellants either requesting for an adjournment or giving the reason for their absence. Accordingly, we have heard Shri M.P. Singh, SDR for the respondents. The appellants in their written memorandum of appeal have stated that initially the goods were cleared on provisional basis. The assessments were subsequently finalised without issuing of a speaking order. It is contended that in the present case no speaking order has been issued. In the absence of a speaking order, the appellants are entitled to challenge the assessments by way of refund claim. It is further contended that in the judgments relied upon by the Commissioner (Appeals), the observations of the Hon'ble Supreme Court are made in a totally different context. It is contended that, in the case of M/s. Flock India Ltd., the order was a speaking order and it was clearly mentioned therein that the assessee may prefer an appeal against the said order to Collector (A). It is stated that, in the present case, no speaking order has been passed. An order allowing out of charge of the goods has simply been made on the Bills of Entry and therefore, it is stated that this decision is not applicable to the facts of the case. We have considered these submissions. The clearance of goods on payment of duty in this case is made by the proper officer under Section 47 of the Customs Act, 1962. It is well settled that such assessment is appealable and against it an appeal can be filed before the appellate authority. Since, admittedly, importers did not contest the assessments and paid duty without even lodging a protest, there is no question of passing of any speaking order in this matter. The assessment on the Bill of Entry itself is a final order of assessment. Hon'ble Supreme Court, in the para-8 of their judgment in Flock India (P) Ltd. (supra), have observed:

"8. From the aforementioned provisions of the Act the position is clear that any order passed by an authority under the Act is appealable to the Collector (Appeals) and a further appeal to the appellate tribunal against the order of the Collect