- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. CUSTOMS APPLICATION NO.40 OF 2003 ... The Commissioner of Customs (Preventive) ...Applicant v/s. Bechtel International Inc. ...Respondent ... Mr.R.V.Desai with Mr.A.S.Rao for the Applicant. Mr.Kevic Setalwad with Mr.D.R.Mehta i/b Dhru Liladhar & Co. for the Respondent. ... CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 29TH SEPTEMBER, 2008 P.C.: This Appeal was admitted on 8-6-2005 on the following questions of law:- - 2 - (i) Whether on the facts and circumstances of the case, the Tribunal was justified in law in holding that, there was no contest on behalf of Revenue in respect of transaction value choused by the supplier of the goods this is preciously because of the fact that the Respondent has accepted the enhancement of the value vide their letter dt.5-4-1995 addressed to the Dy.Commissioner of Customs? (ii) Whether on the facts and circumstances of the case the Tribunal was justified in holding contrary to expressly accepting that the goods be classified as new and have paid the duty without any protest and in that circumstances the Tribunal was justified in directing the Petitioner to accept the transaction value especially when the goods were no more available for inspection? (iii) Whether on the facts and circumstances of the case, the Tribunal was right in law in awarding the refund of Rs.12,72,058/- to the importer? (iv) Whether the Tribunal was right in law and in fact in holding that even after the deletion of the incorrect extract that was erroneously attributed to be the findings of the Deputy Commissioner of Customs in the Order-in-Original, the findings in the order do not undergo any change? 2. After hearing the counsels for both sides, in our opinion, the question of law needs to be reframed as follows:- "Whether in the facts and circumstances of the case the tribunal was justified directing - 3 - refund of the custom duty amounting to Rs.12,72,058/- paid by the Respondent pursuant to the assessment order, even though the assessment order confirming the duty has attained finality? In the absence of any challenge to the assessment order whether the duty paid pursuant to the assessment order can be ordered to be refunded, is a question that needs consideration. Hence, the application is allowed. The Tribunal is directed to forward a statement of case raising the aforesaid question (reframed) for the opinion of this court as expeditiously as possible. The application is disposed off accordingly with no order as to costs. (D.K.DESHMUKH, J.) (J.P.DEVADHAR, J.)