ORDER
C. Satapathy, Member (T)
1) Heard both sides. The original authority on de novo consideration has allowed a refund of Rs.1,84,671,.00 (Rupees One Lakh Eighty Four Thousand Six Hundred Seventy one only) and the same has been paid to the appellants. Subsequently, the said order in original has been set aside by the Commissioner (Appeal) on the ground that the assessed bill of entry was not appealed against by the appellants and therefore, no refund can be given under Section 27 of the Customs Act, 1962. It is not in dispute that in this case no appealable order was passed while originally assessing the bill of entry.
2) We find that the legal position in this regard has been considered in detail by the Mumbai Bench in the case of Telco Ltd. Vs. Commissioner of Customs, Mumbai 2003 (158) E.L.T. 640 (Tri.-Mumbai) with reference to the Apex Court’s decisions in the following cases :
(i) Collector v. Flock (India) Pvt. Ltd. – 2000 (120) E.L.T. 285 (S.C.)
(ii) Karnataka Power Corporation Ltd. v. Commissioner -2002 (143) E.L.T.
We reproduce the conclusion arrived at in the case of Telco (supra) which is as follows :
” There is no conflict between these two decisions of the Apex Court cited above. In fact, both compliment each other by addressing two different situations and allow a harmonious interpretation of the statutory provisions. These decisions read together require a speaking appealable order to be issued at the level of Assistant/Deputy Commissioner either at the stage of assessment of the B/E or at the stage of consideration of refund claim/reassessment. If a speaking appealable order has been passed on initial assessment stage, the assessee has to appeal against the same and can get a consequential refund on succeeding in his appeal. If no such appealable order has been issued at the stage of initial assessment of the B/E, the assessee can take recourse to filing a refund claim under Section 27 and seek a reassessment. To deny an assessee the option to seek reassessment through a refund claim under Section 27, where no appealable order has been passed while assessing the B/E, would render Section 27 redundant and would run counter to the decision of the Apex Court in the case of Karanataka power (supra).”
3) We agree with the conclusion arrived at by the Mumbai Bench in the case of Telco (supra). Accordingly, we are of the view that the appellants in the present case were entitled to seek a variation in the assessment through a refund claim under section 27 of the Customs Act, 1962. Consequently, we set aside the impugned order in appeal and uphold the order in original.
The appeal is allowed with consequential benefit to the appellants.