M/S. PRIYA BLUE INDUSTRIES LTD. versus COMMISSIONER OF CUSTOMS (PREVENTIVE)

Citation: [2004] SUPP. 4 S.C.R. 501 · Decided: 17-09-2004 · Supreme Court of India · Bench: S.N. VARIAVA · Disposal: Dismissed
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Judgment (excerpt)

MIS. PRIY A BLUE INDUSTRIES LTD. 
v. 
COMMISSIONER OF CUSTOMS (PREVENTIVE) 
SEPTEMBER 17, 2004 
[S.N. V ARIA VA AND H.K. SEMA, JJ.] 
Customs Act, 1962-Section 27-Duty-Claim for refund-Without 
challenging the Assessment order-Maintainability of the claim-Held: Not 
maintainable unless the Assessment order is reviewed or modified in 
appeal-Officer considering refund claim cannot review an Assessment 
Order. 
Appellant-Company had paid duty on imported ship under protest. 
Its claim for refund of the duty was rejected. Its appeal against the 
rejection ofrefund was also rejected. Customs, Excise and Gold (Control) 
Appellate Tribunal (CEGAT) dismissed the appeal holding that refund 
claim was not maintainable as no appeal was filed against the Assessment 
Order. Appeal before this Court was also dismissed. Hence the present 
review petition. 
Appellant contended that claim for refund was maintainable even 
if Assessment was not challenged because correctness of Assessment 
could be examined whilst considering the claim for refund; that the 
words "in pursuance of an Order of Assessment" imply that claim for 
refund can be made without challenging the Assessment; and that the 
provision providing limitation period of 1 year or 6 months for filing 
claim for refund showed that refund could be claimed even without 
challenging the Assessment. 
Dismissing the petition, the Court 
HELD: 1. 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 of Customs Act, 1962 and/or modified in 
appeal, that order stands. So long as the order or 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 competent Officer. 
501 
A 
B 
c 
D 
E 
F 
G 
H 
502 
SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R. 
A 
The Officer considering the refund claim cannot also review an 
Assessment order. [504-A, BJ 
2. The words "in pursuance of an Order of Assessment" only 
indicate the party/person who can make a claim for refund. In other 
B 
words, they enable a person who has paid duty in pursuance of an order 
of Assessment to claim 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. [504-D, E] 
3. The provisions for a period of limitation do not indicate that a 
C 
refund claim could be filed without filing an appeal. 
[504-C] 
D 
E 
Collector of Central Excise v. Flock (India) Pvt. Ltd, (2000) 6 SCC 
650, relied on. 
CIVIL APPELLATE JURISDICTION : Review Petition (C) Nos. 96 of 
2004. 
IN 
Civil Appeal No. 9045 of 2003. 
From the Judgment and Order dated 28.5.2002 and 27.6.2003 of the 
Central Excise, Customs and Gold (Control) Appellate Tribunal, New Delhi 
in A. No. C/588/2001-B and C/ROM/222/2002-B and F.O. Nos. 261/2002-
B and Misc. 0. No. 72 of 2003-B. 
F 
Vikram Nankani, Tarun Gulati and S. Hariharan for the Petit"ioner/ 
G 
Appellant. 
Mohan Parasaran, Additional Solicitor General, Rupesh Kumar and ;P. 
Panneswaran for the Respondent. 
· .; 
The Judgment of the Court was delivered by 
S.N. VARIAVA, J. : By this Review Petition, an Order dated 14th 
November, 2003 is sought to be reviewed. 
H 
The facts necessary for the purposes of this Order are as follows: 
-
.. 
PRIYA BLUE INDUSTRIES LTD. v. COMMR. OF CUSTOMS [VARIAVA, J.]503 
The Petitioners had imported a ship for breaking purposes. They filed 
a Bill of Entry. The amount of duty payable was assessed. The Petitioners 
paid the duty under protest. They then filed a Claim for refund of Rs. 
79,64,648 on the ground that duty had been wrongly levied. Their refund was 
rejected on 30th August, 2000. The Appeal filed by them was rejected on 
A 
31st October, 200 I. The further Appeal filed before t'~e Cestoms, Excise and · B 
Gold (Control) Appellate Tribunal (CEGA T) was dismissed by the Tribunal 
on 28th May, 2002. The Tribunal followed the Judgment of this Court in the 
case of Collector of Central Excise v. Flock (India) Pvt. Ltd reported in 
[2000] 6 SCC 650. The Tribunal held that as no Appeal had been filed against 
the Assessment Order the refund claim was not maintainable. The Civil 
Appeal filed before this Court was dismissed by our Order dated 14th 
November, 2003 . 
. As it has been contended that the provisions of t
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