Hon'ble Judges/Coram:
Arun Mishra, Navin Sinha and Indira Banerjee

JUDGMENT

Arun Mishra, J.

1. These appeals have been preferred by the Assessees as well as by the Union of India aggrieved by the judgment and order passed by the High Courts and Customs, Excise and Service Tax Appellate Tribunal, Kolkata (for short referred to as "the Tribunal").

2. The question involved in these appeals is whether in the absence of any challenge to the order of assessment in appeal, any refund application against the assessed duty can be entertained?

3. The tribunal has in the case of ITC Limited opined that unless the order of assessment is appealed, no refund application against the assessed duty can be entertained. On the other hand, in the cases in which Union of India or the Department has come up in appeal, the High Court of Delhi framed question of law as "whether non filing of appeal against the assessed Bill of Entry in which there was no lis between the importer and the Revenue at the time of payment of duty will deprive the importer of his right to file refund claim Under Section 27 of the Customs Act, 1962 (for short, "the 1962 Act")"?

4. While interpreting provisions contained in Section 27 of the Act, the High Court has opined that when there is no assessment order for being challenged in appeal, which is passed Under Section 27(1)(i) of the Act, because there is no contest or lis and hence no adversarial assessment order, the cases would be covered by the provision of Section 27(i) (ii) and refund applications can be maintained by the Assessee even in the absence of filing appeals against the assessed bill of entry. The High Court of Madras has opined similarly.

5. In the case of Union of India and Ors. v. Micromax Informatics Ltd., reported in MANU/DE/0452/2016 : (2016) 335 ELT 446 (Del) the High Court of Delhi has opined that an important change has been made in Section 27 of the