whether in the absence of any challenge to the order of assessment in appeal, any refund application against the assessed duty can be entertained? = The scope of the provisions of refund under Section 27 cannot be enlarged. It has to be read with the provisions of Sections 17, 18, 28 and 128. – When we consider the overall effect of the provisions prior to amendment and post­amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self­assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self­assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self­assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. Resultantly, we find that the order(s) passed by Customs, Excise, and Service Tax Appellate Tribunal is to be upheld and that passed by the High Courts of Delhi and Madras to the contrary, deserves to be and are hereby set aside. We order accordingly. We hold that the applications for refund were not maintainable. The appeals are accordingly disposed of. Parties to bear their own costs as incurred.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 293­294 OF 2009
ITC LIMITED … APPELLANT(S)
VERSUS
COMMISSIONER OF CENTRAL EXCISE,
KOLKATA IV … RESPONDENT(S)
WITH
CIVIL APPEAL NO.2960 OF 2010
CIVIL APPEAL NO.5878 OF 2011
CIVIL APPEAL NO.310 OF 2011
CIVIL APPEAL NOS.4432­4434 OF 2011
CIVIL APPEAL NO.6407 OF 2011
CIVIL APPEAL NOS.1575­1582 OF 2012
CIVIL APPEAL NO.1585 OF 2012
CIVIL APPEAL NO.1571 OF 2012
CIVIL APPEAL NO.5490 OF 2011
CIVIL APPEAL NO.5491 OF 2011
CIVIL APPEAL NO.5489 OF 2011
CIVIL APPEAL NO.6054 OF 2011
CIVIL APPEAL NO.7710 OF 2014
2
CIVIL APPEAL NO.59­60 OF 2016
CIVIL APPEAL NO.96 OF 2016
CIVIL APPEAL NOS. 7384­86 OF 2019
(@ SPECIAL LEAVE PETITION (C) NOS.16114­16116 OF 2017)
CIVIL APPEAL NO. 7387 OF 2019
(@ SPECIAL LEAVE PETITION (C) NO.25193 OF 2016)
CIVIL APPEAL NO. 7388 OF 2019
(@ SPECIAL LEAVE PETITION (C) NO.26530 OF 2016)
CIVIL APPEAL NO. 20852 OF 2017
CIVIL APPEAL NO. 7389 OF 2019
(@ SPECIAL LEAVE PETITION (C) NO.4294 OF 2017)
CIVIL APPEAL NO. 7391 OF 2019
(@ SPECIAL LEAVE PETITION (C) NO.6269 OF 2017)
CIVIL APPEAL NO. 7392 OF 2019
(@ SPECIAL LEAVE PETITION (C) NO.15175 OF 2017)
CIVIL APPEAL NO.18765 OF 2017
CIVIL APPEAL NO. 7393 OF 2019
(@ SPECIAL LEAVE PETITION (C) NO.31561 OF 2017)
CIVIL APPEAL NOS. 7394­96 OF 2019
(@ SPECIAL LEAVE PETITION (C) NOS.5040­5042 OF 2018)
CIVIL APPEAL NO. 7397 OF 2019
(@ SPECIAL LEAVE PETITION (C) NO.15363 OF 2018)
CIVIL APPEAL NO.10082 OF 2018
3
J U D G M E N T
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
    4
    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 & Ors. vs. Micromax Informatics Ltd.,
    reported in (2016) 335 ELT 446 (Del) the High Court of Delhi has opined
    that an important change has been made in Section 27 of the Customs Act
    in that a person can now claim refund of any duty or interest as long as
    such duty or interest was paid or borne by such person. The conditionality
    of such payment having been made pursuant to an order of assessment
    does not exist. It has also been observed that once an application is made
    under Section 27(1) of the Act, it is incumbent on the authority concerned
    to make an order under Section 27(2) determining if any duty or interest as
    claimed is refundable to the applicant. It has been opined that under
    Section 27 of the Act as amended, it is not open to an authority to refuse to
    consider the application for refund only because no appeal has been filed
    against the assessment order, if there is one.
  6. The High court has further opined that although under Section 27(2)
    of the Act, the word ‘assessment’ includes a self­assessment, the clearance
    of the goods upon filing of the bills of entry and payment of duty is not per
    se an assessment order in the context of Section 27(1) (i) as it stood prior to
    8.4.2011, particularly, if such duty has not been paid under protest. In any
    event, after 8.4.2011, as long as customs duty or interest has been borne by
    5
    a person, a claim for refund made by such person under Section 27(1) of
    the Act will have to be entertained and an order passed thereon by the
    authority concerned, even where an order of assessment may not have been
    reviewed or modified in appeal. Reliance has been placed on the case of
    Aman Medical Products Limited v. Commissioner of Customs, Delhi, 2010
    (250) ELT 30 (Del).
  7. The facts of the case of ITC Limited are that the appellants
    manufacture paper from both conventional and unconventional raw
    materials. In the course of the manufacturing activity, waste paper/ broke
    arises which are recycled in the manufacturing process by making pulp.
    Sometimes, after entry in the RG 1 register, the paper is found to be
    defective and incapable of being sold and as such is required to be
    reprocessed and if that is not possible, then it is rejected and has to be repulped and recycled.
  8. The appellant had been paying duty on paper cleared from its factory.
    The rate of duty of paper manufactured from conventional and
    unconventional raw material differed. The appellants availed exemption
    under Notification No.67/95­CE dated March 16, 1995 as to the duty in
    respect of waste paper/ fresh broke. By Notification No.6/2000­CE dated
    March 1, 2000 complete exemption was granted in respect of paper up to
    the specified quantitative limit manufactured from unconventional raw
    materials. Upon receipt of a letter dated March 30, 2001 from the
    6
    Superintendent of Central Excise, the Appellant examined the matter and
    realized the mistake committed by it in availing the exemption under
    Notification No.67.95­CE in respect of waste paper/ broke utilized in the
    manufacture of paper cleared at ‘nil’ rate of duty under Notification
    No.6/2000­CE. From May 2001 onwards, the appellant stopped availing
    the exemption and started payment of duty on waste paper/broke.
  9. The relevant period involved in the appeal i.e. July 2001 to March
  10. The Appellant’s assessments for this period were provisional and
    these entries were finalized on 30.01.2003. The provisional assessment
    order was passed on 1.3.2002. The appellant has claimed that at the time
    of the said final assessment order dated 30.01.2003, it was not aware of the
    notification No.10/96­CE or the said circular dated 1.3.2001 and as such,
    no claim thereunder was made by it till that time nor was any such claim so
    considered or decided in the said final assessment order.
  11. On July 18, 2003, the appellant filed a refund claim for an amount of
    Rs.28,73,120/­ in respect of the duty paid on the said waste paper/ broke
    during the period from July 2001 to March 2002. The said refund claim
    was filed under section 11(b) of the Central Excise Act, 1944 (for short,
    referred to as “the 1944 Act”) and within the statutory period of limitation.
  12. A show cause notice was issued as to why the said claim be not
    rejected to which a reply was filed. The assessment committee rejected the
    said claim. The Commissioner of Appeals dismissed the appeal. Thereafter,
    successive appeal was preferred before the Tribunal. The Tribunal has
    7
    rejected the refund claim of the appellant. Hence, the appeal has been
    preferred under section 35(b) of the 1944 Act.
  13. In the case of Union of India & Ors. v. Micromax Informatics Ltd., the
    respondents (i.e. Micromax Informatics Ltd.) had imported mobile handsets
    including cellular phones during the period 30.07.2014 to 29.8.2014. At
    the time of customs clearance, they paid Additional Customs Duty (CVD)
    under Section 3(1) of the Customs Tariff Act, 1975 at the rate of 6 %. In all,
    the imports bills of entry were self­assessed by the respondents in terms of
    the Self­Assessment Scheme under section 17 of the Act and were thus
    finally assessed. This Court in M/s. SRF v. Commissioner of Customs,
    Chennai 2015 [318] ELT 607 (SC) held that for quantification of CVD in case
    of an article that has been imported, it has to be presumed that the said
    imported article has been manufactured in India and then the amount of
    excise duty leviable thereon has to be ascertained for determining the extent
    of exemption from payment of CVD to which the importer would be entitled.
    The respondent had filed the refund claim of Rs.35.89 crores for duty totally
    paid under the self­assessed bills of entry, under section 27 of the 1962 Act
    in the Air Cargo Export Commissionerate, claiming a refund of the
    Additional Customs Duty (CVD) in view of Serial Number 263 A and
    Condition No.16 of notification No.12/2002­Ex. Dated 17.03.2012 and for
    the said Condition No.16, mobile handsets were chargeable to a duty of 1%
    if no CENVAT credit had been availed by the importer. The Micromax
    claimed that they had made excess payment while complying with the
    8
    condition No.16 of the aforesaid notification. They claimed the refund of
    deferential duty of 5%. The Assistant Commissioner (Refunds) rejected all
    the claims as not maintainable in the absence of evidence of excess
    payment of duty. He further held that the Bills of Entry had already been
    assessed and there were assessment orders which could only be reviewed or
    modified in appeal. It was also observed that the respondent failed to
    submit any reassessment order or speaking order under section 17(5) of the
    1962 Act and that it was beyond the jurisdiction of the Refund Branch to
    decide the issue on merits. The officer considering a refund claim cannot
    sit in appeal over an assessment made by a competent officer. The High
    Court held that self­assessment is not an assessment order per se and
    allowed the writ petition. Hence the appeal by the Union of India.
  14. In Commissioner of Customs, New Delhi v. Aman Medical Products Ltd.,
    the respondents had imported cannula for the purpose of manufacture of
    injection needles. At the time of filing of bills of entry, the respondent could
    not indicate the benefits available under notification No.6/2002 Cus, dated
    1.3.2002 which provided a concessional rate of duty on the imported goods.
    The bills of entry were assessed finally. Subsequently, the respondent filed
    an application for refund. The refund claim was rejected by the Deputy
    Commissioner. The respondent preferred an appeal before the
    Commissioner (Appeals) for grant of refund of excess duty paid by them.
    The appeal was allowed by the Commissioner of Appeals. The Department
    filed an appeal before the Tribunal. The Tribunal observed that refund
    9
    claim cannot be adjudicated on merits. The respondent – Aman Medical
    Products Ltd filed a writ petition before the High Court. The writ petition
    has been allowed.
  15. Shri P. Chidambaram, learned senior counsel has taken us through
    the definition of the ‘assessment’ as prevailed under the 1962 Act and the
    amended definition under the Act, assessment w.e.f. 8.4.2011, Finance Act,
    2011, Section 17 and Section 27 as amended by the Finance Act, 2011. It
    was urged by learned senior counsel that prior to the amendment by the
    Finance Act, 2011, the scheme of assessment under section 17 of the
    Customs Act was such that once a bill of entry was filed, examination and
    testing of the imported goods were done by the proper officer. Thereafter,
    an order of assessment was passed after the physical examination.
    Accordingly, section 27 of the Customs Act provided that claim for refund to
    be made by any person who had (a) paid duty in pursuance of an order of
    assessment or (b) a person who had borne the duty. Earlier, there was a
    necessity for an order of assessment by a proper officer under section 17 of
    the Customs Act. After the amendment to the Act in 2011, there is no need
    to get the assessment of bill of exchange done for claiming a refund of
    excess duty paid under Section 27 of the Act, as now the bill of entry is to
    be self­assessed by the importer or exporter and will be subject to
    verification. Further, under section 17(4) of the Customs Act if it is found
    that self­assessment of duty has not been done correctly by an importer or
    exporter the proper officer, may re­assess the duty. In case of re­assessment
    10
    within fifteen days from the date of re­assessment under section 17(5), a
    speaking order has to be passed by the proper officer. In the case of reassessment done under section 17(4), it is only in these circumstances an
    order is passed. If no order of assessment is passed in the case of selfassessment, the refund application can lie. It was urged that section 27
    has also been amended by way of amendment by the Finance Act, 2011. An
    application for refund of duty and the requirement of order of assessment
    that was requisite before the amendment has now been expressly removed.
    It would be a retrograde step to interpret the amended provision otherwise
    and to deny the refund claim which is not adjudicatory when the bill of
    entry has been passed. In the case of self­assessment, the duty paid under
    a mistake can always be claimed without filing an appeal and in that event
    concerned officer has to look into the matter whether the claim for refund
    was justified.
  16. Reliance has been placed on behalf of the assessee on SRF Limited vs.
    Commissioner of Customs (supra). It is not necessary to pass an order of
    reassessment or speaking order under the amended provisions of section
  17. The decision in Priya Blue Industries v. Commissioner of Customs 2004
    (172) E.L.T. 145 (SC) is based upon the unamended provisions, thus,
    cannot hold the field and is inapplicable in view of the amendment made in
    the provisions. Under section 17(1) of the amended provisions, bills of entry
    have to be self­assessed by importer or exporter. The verification of the selfassessment has now been made optional. The self­assessment is not to be
    11
    disturbed unless there is a verification required by the proper officer and for
    this purpose, he may examine or test goods or part thereof.
  18. It was further urged on behalf of the assessee that amended section
    17 and section 27 are to be read together. By amended section 27 it is now
    provided that an application for refund of duty will be made by any person
    who has paid the duty or by any person who has borne the duty. Earlier
    refund could be claimed by the person who has paid the duty. Under the
    post amendment provision the words “in pursuance to the order of
    assessment” have been deleted and a refund claim is maintainable by the
    assessee in case duty has been “paid by him”. The legislative intent is clear.
    Now the order of assessment has been made irrelevant and a re­assessment
    to an order is no longer a pre­requisite for maintaining a refund claim. Now
    under the scheme of self­assessment, there would be no order of
    assessment by the proper officer.
  19. It was further urged on behalf of the assessee that section 27 cannot
    be rendered otiose or redundant. Section 27 does not contain any
    stipulation which may suggest that refunds can be filed only after the Bill of
    Entry has been appealed against. In the absence of such a statutory
    condition, a restriction on refund claim cannot be imported into the statute.
    Taxing statute has to be strictly interpreted and there is no room to infer
    any intendment thereof as held by this Court in Commissioner of Wealth
    Tax, Gujarat III Ahmedabad v. Ellis Bridge Gymkhana, (1998) 1 SCC 384.
    Reliance has also been placed on the decision of this Court in Maharashtra
    12
    State Financial Corporation v. Jaycee Drugs and Pharmaceuticals (P.) Ltd.
    (1991) 1 SCC 637, O.P. Singla & Anr. v. Union of India & Ors., (1984) 4 SCC
    450, and Union of India v. Popular Construction Co., (2001) 8 SCC 470.
  20. It was also urged that section 27 is a remedy available to the assessee
    for the refund of duty paid and section 28 is a remedy available to the
    Department on the recovery of duty not levied and short levied or
    erroneously levied. Both the remedies can be availed without filing appeals.
    It was further urged that no appeal can be filed under section 128 of the
    Customs Act against the bill of entry. As the scheme of assessment under
    Section 17 of the Customs Act is that of self­assessment and only when
    such a self­assessment is disputed by the proper officer, an order of
    assessment is passed then he may appeal to the relevant appellate
    authority within 60 days of the communication of the order. It is only in a
    situation where speaking order is passed then the assessee is required to
    file an appeal. Unless a speaking order of assessment is passed, no appeal
    can lie and the only option for refund of duty paid is to file a refund claim.
    The bill of entry is merely stamped to allow clearance of the goods. No
    reasons are provided in the bill of entry on account of which it can be
    regarded as an order which can be subjected to appeal under section 128 of
    the Customs Act. The judgment of this Court in Commissioner of Customs v.
    Sayed Ali (265) ELT 17 (SC) is not relevant. The said judgment was passed
    in respect of section 28 of the Customs Act.
  21. On behalf of the Union of India/Department, it is contended that self­
    13
    assessment is an assessment. It is not open to the proper officer after
    accepting the self­assessment to entertain a claim for refund in the absence
    of the self­assessment being questioned in the appeal. The direction to
    reassess the bill of entry after the expiry of more than a year cannot be
    ordered. Reliance has been placed on Collector of Central Excise, Kanpur v.
    Flock (India) Pvt. Ltd., 2000 (120) ELT 285 (SC). In the instant case, the
    bills of entry were filed and they were self­assessed. It is an assessment
    under the Act and in case benefit of notification has not been claimed, in
    the absence of challenge to assessment of bills of entry by way of filing the
    appeal, the benefit of notification cannot be claimed. An application for
    refund is not maintainable in view of the law laid down by this Court in
    Flock (India) Pvt. Ltd. (supra) and Priya Blue Industries (supra). Once the
    self­assessment/assessment attains finality and has not been questioned, it
    cannot be reopened at any point of time. The refund claim is not an
    appellate proceeding. The officer considering a refund claim cannot sit in
    appeal over an assessment made by a competent officer. The officer
    considering the refund claim cannot also review an assessment order. Even
    after the amendment is made in 2011, the conditionality of payment having
    been made pursuant to an order of assessment continue to exist. As the
    self­assessment of bills of entry is an order of assessment per se, unless the
    order of assessment passed under section 2(2) of the Act is appealed before
    Commissioner of Appeals for modification no claim for refund can be
    entertained. The provision of section 128 cannot be rendered otiose. The
    14
    amendment has been made in order to simplify the procedure but the legal
    effect of the self­assessment is that of assessment. While processing selfassessment some exercise has to be done. Once it is accepted, it becomes
    an order of assessment.
  22. Right to appeal is available to any person i.e. to the department as
    well as to importer/exporter against an order of self­assessment. Until and
    unless assessment order is modified and a fresh order of assessment is
    passed and duty redetermined, the refund cannot be granted by way of
    refund application. The refund authorities cannot take over the role of
    Assessing Officer. The officer considering refund claim cannot reassess an
    assessment order. An assessment order has to be questioned within the
    stipulated period of limitation. The refund application cannot be
    entertained directly under section 27 unless the order of assessment is
    appealed against and is modified.
  23. The first question for consideration is whether the assessment
    includes self­assessment also. Prior to the amendment by the Finance Act,
    2011 the assessment had been defined in Section 2(2) thus:
    “2(2) “assessment” includes provisional assessment,
    reassessment and any order of assessment in which the duty
    assessed is nil;”
  24. After the amendment of Section 2(2) made by the Finance Act, 2011
    the definition of ‘assessment’ reads thus:
    15
    “2(2) “assessment” includes provisional assessment, selfassessment, reassessment and any assessment in which the
    duty assessed is nil;”
  25. It is apparent from the amended definition that self­assessment,
    provisional assessment, re­assessment and any assessment in which the
    duty assessed is nil, is an assessment. Assessment includes selfassessment, when the provision of self­assessment has been incorporated
    in Section 17(1), and corresponding change has been made in the definition
    of assessment in Section 2(2). Earlier the word self­assessment was not
    included in the definition of assessment.
  26. The assessment of duty was provided in section 17 of the unamended
    Act prior to 2011. Pre­amended section 17 of the Customs Act is extracted
    hereunder:
    “17. Assessment of duty.—(1) After an importer has
    entered any imported goods under section 46 or an exporter
    has entered any export goods under section 50 the imported
    goods or the export goods, as the case may be, or such part
    thereof as may be necessary may, without undue delay, be
    examined and tested by the proper officer.
    (2) After such examination and testing, the duty, if any,
    leviable on such goods shall, save as otherwise provided in
    section 85, be assessed.
    (3) For the purpose of assessing duty under sub­section (2),
    the proper officer may require the importer, exporter or any
    other person to produce any contract, broker’s note, policy of
    insurance, catalogue or other document whereby the duty
    leviable on the imported goods or export goods, as the case
    may be, can be ascertained, and to furnish any information
    required for such ascertainment which is in his power to
    produce or furnish, and thereupon the importer, exporter or
    16
    such other person shall produce such document and furnish
    such information.
    (4) Notwithstanding anything contained in this section,
    imported goods or export goods may, prior to the
    examination or testing thereof, be permitted by the proper
    officer to be assessed to duty on the basis of the statements
    made in the entry relating thereto and the documents
    produced and the information furnished under sub­section
    (3); but if it is found subsequently on examination or testing
    of the goods or otherwise that any statement in such entry or
    document or any information so furnished is not true in
    respect of any matter relevant to the assessment, the goods
    may, without prejudice to any other action which may be
    taken under this Act, be re­assessed to duty.
    (5) Where any assessment done under sub­section (2) is
    contrary to the claim of the importer or exporter regarding
    valuation of goods, classification, exemption or concessions
    of duty availed consequent to any notification therefor under
    this Act, and in cases other than those where the importer or
    the exporter, as the case may be, confirms his acceptance of
    the said assessment in writing, the proper officer shall pass a
    speaking order within fifteen days from the date of
    assessment of the bill of entry or the shipping bill, as the
    case may be.”
  27. Section 17 as amended by Finance Act, 2011 is extracted hereunder:
    “17. Assessment of duty. — (1) An importer entering
    any imported goods under section 46, or an exporter
    entering any export goods under section 50, shall save as
    otherwise provided in section 85, self­assess the duty, if any,
    leviable on such goods.
    (2) The proper officer may verify the self­assessment of such
    goods and for this purpose, examine or test any imported
    goods or export goods or such part thereof as may be
    necessary.
    [(3) For verification of self­assessment under sub­section (2),
    the proper officer may require the importer, exporter or any
    other person to produce any document or information,
    whereby the duty leviable on the imported goods or export
    goods, as the case may be, can be ascertained and
    thereupon, the importer, exporter or such other person shall
    produce such document or furnish such information.]
    17
    (4) Where it is found on verification, examination or testing of
    the goods or otherwise that the self­assessment is not done
    correctly, the proper officer may, without prejudice to any
    other action which may be taken under this Act, re­assess
    the duty leviable on such goods.
    (5) Where any re­assessment done under sub­section (4) is
    contrary to the self­assessment done by the importer or
    exporter regarding valuation of goods, classification,
    exemption or concessions of duty availed consequent to any
    notification issued therefor under this Act and in cases other
    than those where the importer or exporter, as the case may
    be, confirms his acceptance of the said re­assessment in
    writing, the proper officer shall pass a speaking order on the
    re­assessment, within fifteen days from the date of reassessment of the bill of entry or the shipping bill, as the
    case may be.
    (6) Where re­assessment has not been done or a
    speaking order has not been passed on re­assessment, the
    proper officer may audit the assessment of duty of the
    imported goods or export goods at his office or at the
    premises of the importer or exporter, as may be expedient, in
    such manner as may be prescribed.
    Explanation.—For the removal of doubts, it is hereby
    declared that in cases where an importer has entered any
    imported goods under section 46 or an exporter has entered
    any export goods under section 50 before the date on which
    the Finance Bill, 2011 receives the assent of the President,
    such imported goods or export goods shall continue to be
    governed by the provisions of section 17 as it stood
    immediately before the date on which such assent is
    received.]”
    (emphasis supplied)
  28. Section 27 deals with a claim for refund of duty. Provision of section 27
    which prevailed before amendment by Finance Act, 2011 is extracted
    hereunder:
    “27. (1) Any person claiming refund of any duty­­­
    (i) paid by him in pursuance of an order of assessment; or
    (ii) borne by him,
    may make an application for refund of such duty and
    interest, if any, paid on such duty to the Assistant
    18
    Commissioner of Customs or Deputy Commissioner of
    Customs­
    (a) in the case of any import made by any individual for his
    personal use or by Government or by any educational,
    research or charitable institution or hospital, before the
    expiry of one year ;
    (b) in any other case, before the expiry of six months,
    from the date of payment of duty and interest, if any, paid on
    such duty, in such form and manner as may be specified in
    the regulations made in this behalf and the application shall
    be accompanied by such documentary or other evidence
    (including the documents referred to in section 28C) as the
    applicant may furnish to establish that the amount of duty
    and interest, if any, paid on such duty in relation to which
    such refund is claimed was collected from, or paid by, him
    and the incidence of such duty and interest, if any, paid on
    such duty had not been passed on by him to any other
    person :
    Provided that where an application for refund has been made
    before the commencement of the Central Excises and
    Customs Laws (Amendment) Act, 1991, such application
    shall be deemed to have been made under this sub­section
    and the same shall be dealt with in accordance with the
    provisions of sub­section (2):
    Provided further that the limitation of one year or six
    months, as the case may be, shall not apply where any duty
    and interest, if any, paid on such duty has been paid under
    protest:
    Provided also that in the case of goods which are exempt
    from payment of duty by a special order issued under subsection (2) of section 25, the limitation of one year or six
    months, as the case may be, shall be computed from the
    date of issue of such order.
    [Provided also that where the duty becomes refundable as a
    consequence of judgment, decree, order or direction of the
    appellate authority, Appellate Tribunal or any court, the
    limitation of one year or six months, as the case may be,
    shall be computed from the date of such judgment, decree,
    order or direction.
    Explanation I.­For the purposes of this sub­section, “the date
    of payment of duty and interest, if any, paid on such duty”,
    in relation to a person, other than the importer, shall be
    construed as “the date of purchase of goods” by such person.
    Explanation II.­Where any duty is paid provisionally under
    section 18, the limitation of one year or six months, as the
    case may be, shall be computed from the date of adjustment
    of duty after the final assessment thereof.
    (emphasis supplied)”
    19
  29. The provision of Section 27 of the Customs Act as amended by
    Finance Act, 2011 is extracted hereunder:
    “27. Claim for refund of duty. ­­ (1) Any person
    claiming refund of any duty or interest, ­­
    (a) paid by him; or
    (b) borne by him,
    may make an application in such form and manner as may
    be prescribed for such refund to the Assistant Commissioner
    of Customs or Deputy Commissioner of Customs, before the
    expiry of one year, from the date of payment of such duty or
    interest:
    Provided that where an application for refund has been made
    before the date on which the Finance Bill, 2011 receives the
    assent of the President, such application shall be deemed to
    have been made under sub­section (1), as it stood before the
    date on which the Finance Bill, 2011 receives the assent of
    the President and the same shall be dealt with in accordance
    with the provisions of sub­section (2):
    Provided further that the limitation of one year shall not
    apply where any duty or interest has been paid under
    protest.
    Provided also that where the amount of refund claimed is
    less than rupees one hundred, the same shall not be
    refunded.
    Explanation. ­­ For the purposes of this sub­section, “the
    date of payment of duty or interest” in relation to a person,
    other than the importer, shall be construed as “the date of
    purchase of goods” by such person.
    (1A) The application under sub­section (1) shall be
    accompanied by such documentary or other evidence
    (including the documents referred to in section 28C) as the
    applicant may furnish to establish that the amount of duty
    or interest, in relation to which such refund is claimed was
    collected from, or paid by, him and the incidence of such
    duty or interest, has not been passed on by him to any other
    person.
    (1B) Save as otherwise provided in this section, the period of
    limitation of one year shall be computed in the following
    manner, namely: ­­
    (a) in the case of goods which are exempt from payment of
    duty by a special order issued under sub­section (2) of
    section 25, the limitation of one year shall be computed from
    the date of issue of such order;
    (b) where the duty becomes refundable as a consequence of
    any judgment, decree, order or direction of the appellate
    20
    authority, Appellate Tribunal or any court, the limitation of
    one year shall be computed from the date of such judgment,
    decree, order or direction;
    (c) where any duty is paid provisionally under section 18, the
    limitation of one year shall be computed from the date of
    adjustment of duty after the final assessment thereof or in
    case of re­assessment, from the date of such re­assessment.]
    (2) If, on receipt of any such application, the Assistant
    Commissioner of Customs or Deputy Commissioner of
    Customs is satisfied that the whole or any part of the duty
    and interest, if any, paid on such duty paid by the applicant
    is refundable, he may make an order accordingly and the
    amount so determined shall be credited to the Fund:
    Provided that the amount of duty and interest, if any, paid
    on such duty as determined by the Assistant Commissioner
    of Customs or Deputy Commissioner of Customs under the
    foregoing provisions of this sub­section shall, instead of
    being credited to the Fund, be paid to the applicant, if such
    amount is relatable to­
    (a) the duty and interest, if any, paid on such duty paid by
    the importer [or the exporter, as the case may be], if he had
    not passed on the incidence of such duty and interest, if any,
    paid on such duty to any other person;
    (b) the duty and interest, if any, paid on such duty on
    imports made by an individual for his personal use ;
    (c) the duty and interest, if any, paid on such duty borne by
    the buyer, if he had not passed on the incidence of such duty
    and interest, if any, paid on such duty to any other person;
    (d) the export duty as specified in section 26;
    (e) drawback of duty payable under sections 74 and 75;
    (f) the duty and interest, if any, paid on such duty borne by
    any other such class of applicants as the Central
    Government may, by notification in the Official Gazette,
    specify:
    (g) the duty paid in excess by the importer before an order
    permitting clearance of goods for home consumption is made
    where­­
    (i) such excess payment of duty is evident from the bill of
    entry in the case of self­assessed bill of entry; or
    (ii) the duty actually payable is reflected in the reassessed
    bill of entry in the case of reassessment.
    Provided further that no notification under clause (f) of the
    first proviso shall be issued unless in the opinion of the
    Central Government the incidence of duty and interest, if
    any, paid on such duty has not been passed on by the
    persons concerned to any other person.
    21
    (3) Notwithstanding anything to the contrary contained in
    any judgment, decree, order or direction of the Appellate
    Tribunal, the National Tax Tribunal or any Court or in any
    other provision of this Act or the regulations made
    thereunder or any other law for the time being in force, no
    refund shall be made except as provided in sub­section (2).
    (4) Every notification under clause (f) of the first proviso to
    sub­section (2) shall be laid before each House of Parliament,
    if it is sitting, as soon as may be after the issue of the
    notification, and, if it is not sitting, within seven days of its
    re­assembly, and the Central Government shall, seek the
    approval of Parliament to the notification by a resolution
    moved within a period of fifteen days beginning with the day
    on which the notification is so laid before the House of the
    People and if Parliament makes any modification in the
    notification or directs that the notification should cease to
    have effect, the notification shall thereafter have effect only
    in such modified form or be of no effect, as the case may be,
    but without prejudice to the validity of anything previously
    done thereunder.
    (5) For the removal of doubts, it is hereby declared that any
    notification issued under clause (f) of the first proviso to subsection (2), including any such notification approved or
    modified under sub­section (4), may be rescinded by the
    Central Government at any time by notification in the Official
    Gazette.”
    (emphasis supplied)
  30. Section 28 deals with the recovery of duties not levied or not paid or
    short levied or short paid or erroneously refunded. Section 28(1) is extracted
    hereunder:
    “28. Recovery of duties not levied or not paid or shortlevied or short­paid or erroneously refunded.­­ (1) Where any
    duty has not been levied or not paid or has been short­levied
    or short­paid or erroneously refunded, or any interest
    payable has not been paid, part­paid or erroneously
    refunded, for any reason other than the reasons of collusion
    or any wilful mis­statement or suppression of facts,­­
    (a) the proper officer shall, within two years from the relevant
    date, serve notice on the person chargeable with the duty or
    interest which has not been so levied or paid or which has
    been short­levied or short­paid or to whom the refund has
    22
    erroneously been made, requiring him to show cause why he
    should not pay the amount specified in the notice;
    Provided that before issuing notice, the proper officer shall
    hold pre­notice consultation with the person chargeable with
    duty or interest in such manner as may be prescribed;
    (b) the person chargeable with the duty or interest, may pay
    before service of notice under clause (a) on the basis of,­­
    (i) his own ascertainment of such duty; or
    (ii) the duty ascertained by the proper officer,
    the amount of duty along with the interest payable thereon
    under section 28AA or the amount of interest which has not
    been so paid or part­paid:
    Provided that the proper officer shall not serve such show
    cause notice, where the amount involved is less than rupees
    one hundred.”
    (emphasis supplied)
  31. The first question for consideration is whether in the case of selfassessment without passing a speaking order, it can be termed to be an
    order of self­assessment. It was urged on behalf of the assesses that there is
    no application of mind and merely an endorsement is made by the
    authorities concerned on the bill of entry which cannot be said to be an
    order much less a speaking order.
  32. In Escorts Ltd. v. Union of India & Ors. (1994) Supp. 3 SCC 86 the
    question arose for consideration as to the Bill of Entry classifying the
    imported goods under a certain tariff item and paying the duty thereon.
    This Court held that in such a case signing of the bill of entry itself
    amounted to passing an order of assessment. Hence, the application
    seeking a refund on the ground that imported goods fell under a different
    item attracting a far lower rate of duty, having been filed more than six
    months after the payment of duty, was rightly rejected as time­barred. What
    is of significance is that an entry made in the bill of entry has been held to
    23
    be an order of assessment passed by the Assessing Officer. This Court
    considered the provisions of sections 47 and 17 of the Customs Act and has
    observed:
    “9. Reading Sections 47 and 17 together, it is clear
    beyond any doubt, that as soon as the bill of entry is filed,
    the proper officer examines the goods, tests them, assesses
    the proper duty and permits clearance of goods only after the
    duty and other charges, if any, are paid. In the scheme of the
    Act, there is no room for contending that any goods will be
    allowed to be cleared without assessment of the duty,
    whether provisional or final, as the case may be.
  33. Now it may be noticed that the Act does not prescribe
    any particular form in which the order of assessment is to be
    made. In the very nature of things, no formal order of
    assessment can be expected when there is no dispute as to
    the classification or the rate of duty. No formal order can be
    expected in such a case, it is more like ‘across­the­counter’
    affair. In the present case, it may be reiterated that the
    appellant himself classified the goods under tariff item No.
    73.33/40 and paid the duty at the rate applicable
    thereunder. At that stage, he did not raise any dispute either
    as to classification or as to the right of duty applicable.
    Hence, there was no occasion for passing a formal order
    since there was no lis at that stage. The bill of entry
    presented by the appellant was signed, signifying approval by
    the assessing officer. That itself is an order of assessment in
    such a situation. We are, therefore, not prepared to agree
    that there is no order of assessment in this case, and
    therefore, the limitation prescribed in Section 27 did not
    begin to run. Section 27 is emphatic in language. It says that
    an application for refund of duty shall be made before the
    expiry of six months from the date on which the duty was
    paid. In the face of this provision, the authorities under the
    Act, including the Government of India, had no option but to
    dismiss the appellant’s application. This is also the view
    taken by this Court in Madras Rubber Factory Ltd. v. Union
    of India (1976) 2 SCC 255.”
    (emphasis supplied)
  34. It is apparent from the aforesaid discussion that the endorsement made
    on the bill of entry is an order of assessment. It cannot be said that there is
    24
    no order of assessment passed in such a case. When there is no lis,
    speaking order is not required to be passed in “across the counter affair”.
  35. Coming to the procedure of assessment of duty as prevailed before the
    amendment of the Act prior to the amendment made in section 17(1) by the
    Finance Act of 2011, the imported goods or exported goods were required to
    be examined and tested by the proper officer. After such examination, he
    had to make an assessment of the duty, if any, leviable on these goods.
    Under sub­section (3) of section 17, the proper officer was authorized to
    require the importer, exporter or any other person to produce any contract,
    broker’s note or any other document as specified in the proviso and to
    furnish any required information. Notwithstanding that the statements
    made in the bill of entry relating thereto and the documents produced and
    the information furnished under sub­section (3); but if it was found
    subsequently on examination or testing of the goods or otherwise that any
    statement in such bill of entry or document or any information so furnished
    was not true, he could have proceeded to reassess the duty. Where the
    assessment done under sub­section (2) is contrary to the claim of the
    importer or exporter regarding valuation of the goods, classification,
    exemption or concession, speaking order shall be passed within 15 days
    from the date of assessment of the bill of entry or the shipping bill as the
    case may be as provided in section 17(5).
  36. Under the provisions of section 17 as amended by Finance Act of
    2011, section 17(1) has provided to self­assess the duty if any leviable on
    25
    such goods by importer or exporter as the case may be. Self­assessment is
    an assessment as per the amended definition of section 2(2). It is further
    provided that proper officer may verify the self­assessment of such goods,
    and for this purpose, examine or test any imported goods or exported goods
    or such part thereof as may be necessary. The power to verify selfassessment lies with the proper officer and for that purpose under section
    17(3), he may require the importer, exporter or any other person to produce
    such document and furnish such information, etc. If the proper officer on
    verification has found on examination or testing of the goods or as part
    thereof or otherwise that the self­assessment is not done correctly, the
    proper officer may, without prejudice to any other action which may be
    taken under the Act, may proceed to re­assess the duty leviable on such
    goods. Section 17(5) of the Act as amended provides that where reassessment done under sub­section 17(4) is contrary to the assessment
    done by the importer or exporter regarding the matters specified therein, the
    proper officer has to pass a speaking order on the re­assessment, within 15
    days from the date of reassessment of the bill of entry or the shipping bill,
    as the case may be. The explanation to amended section 17 has clarified
    that import or export before the amendment by Finance Act, 2011 shall be
    governed by unamended provisions of section 17.
  37. Section 18 deals with the provisional assessment of duty where the
    importer or exporter is unable to make self­assessment or the proper officer
    deem it necessary to subject any imported or export goods to any chemical
    26
    or other tests; or where further inquiry is deemed necessary by the proper
    officer.
  38. Section 27 of the Act prior to amendment by Finance Act, 2011
    provided for refund procedure. Any person could claim a refund of duty and
    interest if any paid on such duty. Refund of duty and interest if any paid
    pursuant to the order of assessment or borne by him, may make an
    application for refund of such duty to the Assistant Commissioner of
    Customs or Deputy Commissioner of Customs within one year in the case of
    any import made by any individual for his personal use or by Government
    or by any educational, research or charitable institution or hospital. In any
    other case before the expiry of six months from the date of payment of duty
    and interest. He has to further satisfy that he has not passed on such
    liability to any other person. The limitation of one year or six months shall
    not apply where any duty and interest has been paid under protest. It is
    made clear by the second proviso to section 27 that in case of refund
    becomes necessary as a consequence of judgment, decree, order or direction
    of the appellate authority, Appellate Tribunal or any court, the limitation of
    one year or six months shall commence from the date of such judgment,
    decree, order or direction.
  39. Section 27 of the Customs Act as amended by Finance Act, 2011
    provides that any person claiming refund of any duty or interest paid or
    borne by him, may make an application in such form and manner as may
    be prescribed for such refund to the Assistant or Deputy Commissioner of
    27
    Customs before the expiry of one year from the date of payment of such
    duty or interest. If an application for refund has been made before Finance
    Bill received the assent of the President, it is deemed to be filed under the
    provision of section 27 (1) as existed and to be dealt with under section
    27(2). The period of limitation of one year provided by the provisions of
    section 27 has to be computed in the case of goods which are exempt from
    payment of duty by a special order issued under section 25(2) from the date
    of issue of such an order as provided in section 27(1B)(a). Where the duty
    becomes refundable as a consequence of any judgment, decree, order or
    direction of the appellate authority, Appellate Tribunal or any Court, the
    limitation of one year shall be computed from the date of such judgment,
    decree, order or direction. It is provided in Section 27(1B)(c) that where any
    duty is paid provisionally under Section 18, the limitation of one year shall
    be computed from the date of adjustment of duty after the final assessment
    thereof or in the case of re­assessment, from the date of such reassessment. The second proviso to section 27 makes it clear that limitation
    of 1 year shall not apply where any duty or interest has been paid under
    protest.
  40. Under Section 27(2)(a) it is incumbent upon the applicant to satisfy
    that the amount of duty or interest of which refund has been claimed, had
    not been passed by him to any other person, the provision aims at
    preventing unjust enrichment.
    28
  41. No doubt about it that the expression which was earlier used in
    Section 27(1)(i) that “in pursuance of an order of assessment” has been
    deleted from the amended provision of Section 27 due to introduction of
    provision as to self­assessment. However, as self­assessment is nonetheless
    an order of assessment, no difference is made by deletion of aforesaid
    expression as no separate reasoned assessment order is required to be
    passed in the case of self­assessment as observed by this Court in Escorts
    Ltd. v. Union of India & Ors. (supra).
  42. In Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. 2000
    (120) ELT 285 (SC)= (2000) 6 SCC 650, the question which came up for
    consideration before this Court was non­challenge of an appealable order
    where the adjudicating authority had passed an order which is appealable
    under the statute, and the party aggrieved did not choose to file an appeal.
    This Court held that it is not open to the party to question the correctness
    of the order of the adjudicating authority subsequently by filing a claim for
    refund on the ground that the adjudicating authority had committed an
    error in passing the order. The provisions of the Central Excise Act, 1944
    came up for consideration. The Court has observed:
    “10. Coming to the question that is raised, there is
    little scope for doubt that in a case where an adjudicating
    authority has passed an order which is appealable under the
    statute and the party aggrieved did not choose to exercise
    the statutory right of filing an appeal, it is not open to the
    party to question the correctness of the order of the
    adjudicating authority subsequently by filing a claim for
    refund on the ground that the adjudicating authority had
    committed an error in passing its order. If this position is
    29
    accepted then the provisions for adjudication in the Act and
    the Rules, the provision for appeal in the Act and the Rules
    will lose their relevance and the entire exercise will be
    rendered redundant. This position, in our view, will run
    counter to the scheme of the Act and will introduce an
    element of uncertainty in the entire process of levy and
    collection of excise duty. Such a position cannot be
    countenanced. The view was taken by us also gains support
    from the provision in sub­rule (3) of Rule 11 wherein it is laid
    down that whereas a result of any order passed in appeal or
    revision under the Act, refund of any duty becomes due to
    any person, the proper officer may refund the amount to
    such person without his having to make any claim in that
    behalf. The provision indicates the importance attached to an
    order of the appellate or revisional authority under the Act.
    Therefore, if an order which is appealable under the Act is
    not challenged then the order is not liable to be questioned
    and the matter is not to be reopened in a proceeding for the
    refund which, if we may term it so, is in the nature of
    execution of a decree/order. In the case at hand, it was
    specifically mentioned in the order of the Assistant Collector
    that the assessee may file an appeal against the order before
    the Collector (Appeals) if so advised.”
    (emphasis supplied)
  43. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive)
    2004 (172) ELT 145 (SC)= (2005) 10 SCC 433, the Court considered
    unamended provision of Section 27 of the Customs Act and a similar
    submission was raised which was rejected by this Court observing that so
    long as the order of assessment stands, the duty would be payable as per
    that order of assessment. This Court has observed thus:
    “6. We are unable to accept this submission. Just such a
    contention has been negatived by this Court in Flock (India)
    case (2000) 6 SCC 650. 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 and/or modified in an appeal, that order stands. So long
    as the order of 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
    30
    competent officer. The officer considering the refund claim
    cannot also review an assessment order.
  44. We also see no substance in the contention that provision
    for a period of limitation indicates that a refund claim could
    be filed without filing an appeal. Even under Section 11
    under the Excise Act, the claim for refund had to be filed
    within a period of six months. It was still held, in Flock
    (India)’s case (supra), that in the absence of an appeal having
    been filed no refund claim could be made.
  45. The words “in pursuance of an order of assessment” only
    indicate the party/person who can make a claim for refund.
    In other words, they enable a person who has paid duty in
    pursuance of an order of assessment to claim the 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.”
    (emphasis supplied)
  46. It is apparent from provisions of refund that it is more or less in the
    nature of execution proceedings. It is not open to the authority which
    processes the refund to make a fresh assessment on merits and to correct
    assessment on the basis of mistake or otherwise.
  47. It was contended that no appeal lies against the order of selfassessment. The provisions of Section 128 deal with appeals to the
    Commissioner (Appeals). Any person aggrieved by any decision or order may
    appeal to the Commissioner (Appeals) within 60 days. There is a provision
    for condonation of delay for another 30 days. The provisions of Section 128
    are extracted hereunder:
    “128. Appeals to [Commissioner (Appeals)]. ­­ (1) Any
    person aggrieved by any decision or order passed under this
    Act by an officer of customs lower in rank than a [Principal
    Commissioner of Customs or Commissioner of Customs] may
    appeal to the [Commissioner (Appeals)] [within sixty days]
    from the date of the communication to him of such decision
    or order:
    31
    [Provided that the Commissioner (Appeals) may, if he is
    satisfied that the appellant was prevented by sufficient cause
    from presenting the appeal within the aforesaid period of
    sixty days, allow it to be presented within a further period of
    thirty days.]
    [(1A) The Commissioner (Appeals) may, if sufficient cause is
    shown, at any stage of hearing of an appeal, grant time, from
    time to time, to the parties or any of them and adjourn the
    hearing of the appeal for reasons to be recorded in writing:
    Provided that no such adjournment shall be granted more
    than three times to a party during hearing of the appeal.]
    (2) Every appeal under this section shall be in such form and
    shall be verified in such manner as may be specified by rules
    made in this behalf.”
  48. As the order of self­assessment is nonetheless an assessment order
    passed under the Act, obviously it would be appealable by any person
    aggrieved thereby. The expression ‘Any person’ is of wider amplitude. The
    revenue, as well as assessee, can also prefer an appeal aggrieved by an
    order of assessment. It is not only the order of re­assessment which is
    appealable but the provisions of Section 128 make appealable any decision
    or order under the Act including that of self­assessment. The order of selfassessment is an order of assessment as per section 2(2), as such, it is
    appealable in case any person is aggrieved by it. There is a specific
    provision made in Section 17 to pass a reasoned/speaking order in the
    situation in case on verification, self­assessment is not found to be
    satisfactory, an order of re­assessment has to be passed under section
    17(4). Section 128 has not provided for an appeal against a speaking order
    but against “any order” which is of wide amplitude. The reasoning employed
    by the High Court is that since there is no lis, no speaking order is passed,
    32
    as such an appeal would not lie, is not sustainable in law, is contrary to
    what has been held by this Court in Escorts (supra).
  49. The provisions under section 27 cannot be invoked in the absence of
    amendment or modification having been made in the bill of entry on the
    basis of which self­assessment has been made. In other words, the order of
    self­assessment is required to be followed unless modified before the claim
    for refund is entertained under Section 27. The refund proceedings are in
    the nature of execution for refunding amount. It is not assessment or reassessment proceedings at all. Apart from that, there are other conditions
    which are to be satisfied for claiming exemption, as provided in the
    exemption notification. Existence of those exigencies is also to be proved
    which cannot be adjudicated within the scope of provisions as to refund.
    While processing a refund application, re­assessment is not permitted nor
    conditions of exemption can be adjudicated. Re­assessment is permitted
    only under Section 17(3)(4) and (5) of the amended provisions. Similar was
    the position prior to the amendment. It will virtually amount to an order of
    assessment or re­assessment in case the Assistant Commissioner or Deputy
    Commissioner of Customs while dealing with refund application is
    permitted to adjudicate upon the entire issue which cannot be done in the
    ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union
    of India 2009 (240) ELT 490 (Bom.) though the High Court interfered to
    direct the entertainment of refund application of the duty paid under the
    33
    mistake of law. However, it was observed that amendment to the original
    order of assessment is necessary as the relief for a refund of claim is not
    available as held by this Court in Priya Blue Industries Ltd. (supra).
  50. Reliance was also placed on a decision of Rajasthan High Court with
    respect to service tax in Central Office Mewar Palace Org. v. Union of India
    2008 (12) STR 545 (Raj.). In view of the aforesaid discussion, we are not
    inclined to accept the reasoning adopted by the High Court, that too is also
    not under the provisions of the Customs Act.
  51. The decision in Intex Technologies (India) Ltd. v. Union of India has
    followed Micromax (supra). The reasoning employed by the High Courts of
    Delhi and Madras does not appear to be sound. The scope of the provisions
    of refund under Section 27 cannot be enlarged. It has to be read with the
    provisions of Sections 17, 18, 28 and 128.
  52. When we consider the overall effect of the provisions prior to
    amendment and post­amendment under Finance Act, 2011, we are of the
    opinion that the claim for refund cannot be entertained unless the order of
    assessment or self­assessment is modified in accordance with law by taking
    recourse to the appropriate proceedings and it would not be within the ken
    of Section 27 to set aside the order of self­assessment and reassess the duty
    for making refund; and in case any person is aggrieved by any order which
    would include self­assessment, he has to get the order modified under
    Section 128 or under other relevant provisions of the Act.
    34
  53. Resultantly, we find that the order(s) passed by Customs, Excise, and
    Service Tax Appellate Tribunal is to be upheld and that passed by the High
    Courts of Delhi and Madras to the contrary, deserves to be and are hereby
    set aside. We order accordingly. We hold that the applications for refund
    were not maintainable. The appeals are accordingly disposed of. Parties to
    bear their own costs as incurred.

…………………………. J.
(Arun Mishra)
…………………………. J.
(Navin Sinha)
…………………………. J.
(Indira Banerjee)
New Delhi;
September 18, 2019.