JUDGMENT B.N. MAHAPATRA, J. : The present appeal has been directed under Section 130 of the Customs Act, 1962 (in short, “the Act, 1962”) against the order dated 05.07.2012 passed by the Customs, Excise & Service Tax Appellate Tribunal (for short, “CESTAT”), East Zonal Bench, Kolkata in Customs Appeal No.C/174/2011. 2.Appellant’s case in a nut-shell is that the appellant carries on business in manufacturing iron, steel and allied products. Low Ash Meterological Coke (in short, “LAM Coke”) is used as raw material for manufacture of the above finished products. To manufacture the said LAM coke, the appellant had installed Coke Oven Plant inside its factory premises. Coking coal is used as raw material for manufacture of LAM Coke, which the appellant procures mostly from imported sources. According to the appellant, coking coal is classified under Tariff item “27011910” of the Customs Tariff Act, 1975 (for short, “Tariff Act, 1975”). The tariff rate of duty is 5% ad valorem. However, it is exempted from payment of customs duty vide Notification No.21/CSU-2002 dated 01.03.2002. On 26.09.2008 the appellant had entered into a contract with an overseas supplier for purchase of 50,000 M.T. of century PCI coal (Century Semi Soft Coking Coal). Upon arrival of the vessel at the destination port, i.e. Paradeep, the appellant filed the Bill of Entry (B/E) on 10.10.2008 for assessment and clearance of imported consignment for home consumption. In the said B/E, the rate of Custom duty was claimed as ‘Nil’ in terms of above Notification dated 01.03.2002. Pending submission of original documents, demurrag details and the BRC, the B/E was assessed provisionally by the Customs House, Paradeep. While provisionally assessing the B/E, the Superintendent of Customs has suo motu changed the classification of imported goods from ‘27011910 to ‘27011990’ and also the duty liability from ‘Nil’ to ‘5%’ without extending the benefit under notification dated 01.03.2002 and without considering the explanation furnished by the appellant vide its letters dated 22.10.2008 and 27.10.2008. In order to clear the imported goods from Custom’s custody for the intended purpose, the appellant had no option, but to pay the provisional assessed duty under protest on 04.11.2008. Subsequent to payment of the duty under protest, the appellant has lodged the refund claim. In the application for refund, the detailed justifications were furnished in favour of classification of imported coking coal under Chapter 27011910 instead of 27011990. Subsequent to payment of the duty under protest, the appellant has lodged the refund claim. In the application for refund, the detailed justifications were furnished in favour of classification of imported coking coal under Chapter 27011910 instead of 27011990. The said refund application was returned by the Customs Department under the cover letter dated 04.02.2009 stating that the B/E has not been received in the refund section after final assessment and accordingly, the appellant was requested to re-submit the application after final assessment of the B/E. After lapse of more than 1½ years from the date of payment of duty under protest, the Customs Superintendent (Import) vide letter dated 10.03.2010 had informed the appellant that the B/E has been assessed finally. Consequent upon resubmission of the refund application, the Assistant Commissioner of Customs has issued a show-cause notice dated 02.08.2010, proposing for rejection of the refund application. The refund application filed by the appellant has been rejected vide refund order dated 24.09.2010. Hence the present appeal. 3.Mr. S.K. Mohanty, learned counsel appearing for the appellant vehemently argued that the learned Tribunal has rejected the refund claim relying on a decision of the Hon’ble Supreme Court in the case of Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive), (2005) 10 SCC 433 wherein it is held that if assessment finalized in B/E is not challenged by filing appeal, the claim for refund made under Section 27 of the Act, 1962 would not be maintainable. Mr. Mohanty further submitted that since no assessment order has been communicated to the appellant there is no scope for filing appeal before the Commissioner (Appeals) in terms of Section 128 of the Act, 1962. Letter dated 10.03.2010 of the Superintendent (Import), Customs House, Paradeep is a mere communication, informing the appellant that the B/E has been finally assessed by the Deputy Commissioner. The said letter cannot be construed as a ‘decision’ or ‘order’, because he has not taken any decision or passed any order of his own in finalizing the assessment, which can be challenged by the appellant in terms of Section 128 of the Act, 1962. 4.Mr. The said letter cannot be construed as a ‘decision’ or ‘order’, because he has not taken any decision or passed any order of his own in finalizing the assessment, which can be challenged by the appellant in terms of Section 128 of the Act, 1962. 4.Mr. Mohanty further submitted that no speaking order has been issued to the appellant in terms of Section 17(5) of the Act, 1962, despite the fact that the Customs duty has been paid by the appellant under protest and the classification of imported cargo was in dispute right from the beginning. It was further submitted that the decisions of Hon’ble Supreme Court in the case of Priya Blue Industries (supra) and the Bombay High Court in the case of Karan Associates v. Commissioner of Customs (Import), Mumbai, 2009 (236) ELT 23 (Bom), relying upon which the appellant’s refund claim application was rejected, have no application to the fact of the present case. The finalization of B/E without considering the submission of the appellant and affording any opportunity of personal hearing is against the cardinal principles of natural justice. 5.Per contra, Mrs. M. Padhi, learned counsel appearing for the respondent vehemently argued that as per Customs Notification No.1/1987 dated 10.02.1987, the Superintendent is the “Proper Officer” as provided under Section 2(34) of the Act, 1962 for making assessment of duty. Section 17(5) of the Act, 1962 has no relevance to the present case, the goods being provisionally assessed under Section 18(1)(a) of the Act as some documents were wanting. Thereafter, it has been finally assessed under Section 18(2) of the Act, 1962. Placing reliance on the order and entries made on different dates, Mrs. Padhi submitted that the Deputy Commissioner has taken decision on the basis of materials available on record. The Superintendent has been reporting to the Deputy Commissioner for his approval at every step. The change of classification was made by the Deputy Commissioner himself as Proper and Competent Officer and all the notings were placed before him for his approval. Mrs. Padhi further referring to Section 17 of the Act submitted that under Section 17(5) of the Act, 1962 when the testing or examination under Sec. 17(2) is contrary to the claim of the importer regarding valuation, classification, exemption and the importer does not confirm his acceptance of the said assessment in writing, the proper officer shall pass a speaking order. Padhi further referring to Section 17 of the Act submitted that under Section 17(5) of the Act, 1962 when the testing or examination under Sec. 17(2) is contrary to the claim of the importer regarding valuation, classification, exemption and the importer does not confirm his acceptance of the said assessment in writing, the proper officer shall pass a speaking order. It is further submitted that Section 18 of the Act, 1962 provides for procedure of provisional assessment of duty. Where the proper officer is satisfied that an importer is unable to produce any document/information necessary for the assessment of duty, he may direct that the duty leviable on such goods may be assessed provisionally, if the importer furnishes such security as the proper officer deems fit for payment of the deficiency between the finally assessed and the provisionally assessed duty. If the amount paid is less, the importer shall pay the deficiency and if the amount paid is excess of the duty finally assessed, the importer shall be entitled to a refund. Mrs. Padhi further submitted that in the instant case duty has been assessed provisionally pending submission of some documents thereby attracting Section 18(1)(a). Thereafter, under Section 18(2), the importer is only to be informed about the quantum of duty finally assessed whether there is any deficiency or refund, as the case may be. The appellant was informed under Annexure-11 that duty having been finally assessed, the Deputy Commissioner has redeemed the PD Bond. Hence there is no excess payment by the importer to claim refund under Section 27 of the Act. Under Sec. 18(2), the importer is to be informed about the finally assessed duty and therefore probably there is no mention of any “Proper Officer” or “Speaking Order”. Under the provisional assessment, the party has already explained the classification to the satisfaction of the Proper Officer. 6.Mrs. Padhi further submitted that to claim refund, the importer has to apply as per Form 102. A bare perusal of the said document shows that a copy of the B/E has to be submitted as documents. The order of provisional assessment was never challenged. After verification of records the note for final assessment was put up by the Superintendent on 10.03.2010, vide Annexure-5. Referring to some of the averments made in Paragraphs 2.8, 2.9, 2.10 and the prayer made in appeal before the CESTAT, Mrs. The order of provisional assessment was never challenged. After verification of records the note for final assessment was put up by the Superintendent on 10.03.2010, vide Annexure-5. Referring to some of the averments made in Paragraphs 2.8, 2.9, 2.10 and the prayer made in appeal before the CESTAT, Mrs. Padhi submitted that the appellant accepted the fact that final assessment has been done. It is further submitted that in a refund application the validity and legality of an assessment order cannot be challenged. The appellant filed refund application even after realizing that the duty amount remained unchallenged after final assessment. The appellant wanted a reassessment or change in the assessment through a refund application which is not permissible under law in view of judgment of the Hon’ble Supreme Court in Priya Blue case (supra). In support of her contentions, Mrs. Padhi also relied upon a decision of the Hon’ble Supreme Court in the case of Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd., C-7, Panki Industrial Area, Kanpur, (2000) 6 SCC 650 . It was further submitted that the order-sheet goes to reveal that the proper officer i.e. Deputy Commissioner after perusal of the relevant documents and on being satisfied endorsed the note of the Superintendent. Hence, the letter of the Superintendent, who is an officer of the Customs and the proper officer for assessment of duty, on 10.3.2010 communicated the decision of the Deputy Commissioner regarding Final Assessment under Sec. 18(2) of the Act. A refund application is not maintainable without challenging the provisional assessment or the final assessment in appeal. The scope under refund application or on an appeal arising out of a refund application is limited. The refund granting authority cannot sit in appeal on the validity and legality of an assessment order, be it provisional or final. He can only examine whether any refund is due from an assessment or not. Concluding her argument Mrs. Padhi prayed for dismissal of the appeal. 7.On the rival contentions of both parties, the following questions fall for consideration by this Court : (i)Whether the communication dated 10.3.2010 passed by order under Annexure-5 by the Superintendent (Import) Customs House, Paradeep is an order of assessment in terms of Section 17(2) read with Section 17(5) of the Customs Act, 1962, which is appealable under Section 128 of the Customs Act ? (ii)Whether Section 18(2) of the Act contemplates passing of any final assessment order as stated in communication dated 10.03.2010 (Annexure-5) ? (iii)Whether the Proper Officer of the Customs is obliged under law to pass a speaking order of assessment in terms of Section 17(2) read with Section 17(5) of the Customs Act, 1962 when the classification of imported cargo was in dispute right from the beginning, despite the fact that the custom duty has been paid by the importer under protest ? (iv)Whether finalization of bill of entry without considering the objection raised by the appellant against levy of duty and also without affording any opportunity of hearing amounts to violation of cardinal principles of natural justice ? (v)Whether the order passed by the CESTAT is rejecting the appellant’s refund application is just and proper in the facts and circumstances of the case ? (vi)Whether the refund application is maintainable without challenging in a appeal the provisional assessment order or final assessment order ? (vii)What order ? 8.Question Nos. (i), (ii) and (iii) being interlinked, they are dealt with together. 9.Sections 17 and 18 (1) of the Customs Act, 1962 deal with the assessment. Under Sub-section (1) of Sec. 17 that 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. Sub-section (2) provides that after such examination or testing, the duty, if any, leviable on such goods shall, save as otherwise provided in Sec. 85 be assessed. Sub-section (3) empowers the proper officer to 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. The proper officer may also require importer or exporter or any other person to furnish any information required for such ascertainment which is his power to produce or furnish and thereupon the importer, exporter or such other person shall produce such document and furnish such information. The proper officer may also require importer or exporter or any other person to furnish any information required for such ascertainment which is his power to produce or furnish and thereupon the importer, exporter or such other person shall produce such document and furnish such information. Sub-section (4) provides that imported goods or export goods may, prior tot he examination of 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 Section (3). However, 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 relating to the assessment, the goods may, without prejudice to any other action which may be taken under this Act, be reassessed to duty. Sub-section (5), provides that where any assessment done under Sub-section (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 therefore 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. Sub-section (1) of Section 18 speaks provisional assessment of duty under certain contingencies stated in the said Section. Provisional assessment of duty is directed by the Proper Officer if the importer or the exporter, as the case may be, furnishes such security as the Proper Officer deems fit or for the payment of the deficiency, if any between the duty as may be finally assessed or reassessed as the case may be and duty provisionally assessed. 10.Undisputedly in the present case, the claim of the appellant from the very beginning is that coking coal is classified under tariff item 27011910 of the Customs Tariff Act, 1975. The Tariff rate of duty is 5% ad valorem. However, the appellant’s claim was that the same is exempted from payment of Customs duty vide Notification No.21/2002. 10.Undisputedly in the present case, the claim of the appellant from the very beginning is that coking coal is classified under tariff item 27011910 of the Customs Tariff Act, 1975. The Tariff rate of duty is 5% ad valorem. However, the appellant’s claim was that the same is exempted from payment of Customs duty vide Notification No.21/2002. Upon arrival of the vessel at the destination port i.e. Paradeep, the appellant filed the bill of entry on 14.10.2008 for assessment and clearance of imported consignment for home consumption. In the said B/E, the rate of customs duty was claimed as ‘Nil’ in terms of notification dated 01.03.2002. In support of its claim that the imorted cargo is Coking Coal, the appellant in the letters dated 20.10.2008 and 27.10.2008 had enclosed the certificate issued by the overseas supplier. Perusal of letter dated 22.10.2008 addressed to the Superintendent of Customs, Custom House, Paradeep by the appellant reveals that the appellant has attached a literature on Properties of Coal, Caking Properties of Coals and manufacture of Coke where the raw material is Coking Coal. It was further indicated in the said letter that if the Crucible swelling index of the coalis 0-3, then the same coal is having caking behaviour i.e. coking coal. Besides the same, the shipper M/s. Millennium Coal Pvt Ltd. Australia has also issued a certificate, where they have declared that the type of Coal supplied by them is to be used as a blend component in the Coking process. However, pending submission of original documents, demurrage details and the BRCD, the B/E was assessed provisionally by the Custom House, Paradeep. While provisionally assessing the B/E, the classification of imported goods has been changed from 27011910 to 27011990 and the duty liability from ‘Nil to ‘5%’. As it appears the benefit of notification dated 01.03.2002 as claimed by the appellant has not been extended to it. 11.It is not the case of respondent-department that after completion of the provisional assessment order, any regular/final assessment order has been passed as provided under Section 17 of the Act. On the contrary, referring to letter dated 10.03.2013, Mrs. Padhi submitted that bill of entry No.666757 dated 14.10.2008 previously assessed provisionally pending submission of original documents, demurrage certificates, bank signed invoices and test result and has been assessed finally under Section 18(2) of the Customs Act, 1962. On the contrary, referring to letter dated 10.03.2013, Mrs. Padhi submitted that bill of entry No.666757 dated 14.10.2008 previously assessed provisionally pending submission of original documents, demurrage certificates, bank signed invoices and test result and has been assessed finally under Section 18(2) of the Customs Act, 1962. This further shows that no regular/final assessment as provided under Section 17 of the Act has been passed. Section 18(2) does not contemplate of passing any final order of assessment by the Department. Section 18(2) envisages that when the duty leviable on the imported goods or export goods is assessed finally by the Proper Officer, the importer or exporter is informed as the case may be, in case of goods clear for home consumption or exportation the amount paid shall be adjusted against the duty finally assessed and if the amount so paid fall short off or is in excess of the duty finally assessed the importer or exporter of the goods shall pay the deficiency or be entitled to a refund. The use of expression “assessed” finally in Sub-section (2) of Section 18 refers to the assessment made under Section 17 of the Act. Therefore, only after the final assessment is made under Section 17, the provisions of Sub-section (2) of Section 18 come to play for the purpose enumerated therein. 12.From letter dated 10.03.2010, it is amply clear that no final assessment under Section 17 has been passed much less any speaking order has been made indicating as to why the benefit claimed by the appellant, i.e., exemption from payment of the custom duty vide Notification No.21/2002 dated 01.03.2002 has been denied to it. It is nobody’s case that the importer confirms its acceptance of the assessment in writing. On the contrary, from the very beginning, the appellant’s claim is that it is exempted from payment of customs duty on the imported cargos in question vide Notification No.21/2002 dated 01.03.2002. Therefore, as contemplated under Section 17, the Proper Officer is obliged to pass a speaking order of assessment, which has not been done in the instant case. 13.Question No.(iv) is whether finalization of bill of entry without considering the objection raised by the appellant against levy of duty and also without affording any opportunity of hearing amounts to violation of cardinal principle of natural justice. Needless to say that reason is the heartbeat of every conclusion. 13.Question No.(iv) is whether finalization of bill of entry without considering the objection raised by the appellant against levy of duty and also without affording any opportunity of hearing amounts to violation of cardinal principle of natural justice. Needless to say that reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless. [See Raj Kishore Jha v. State of Bihar (2003) 11 SCC 519 ]. One of the cardinal principles is that nobody should be condemned unheard. The very principle has been embodied under Sub-section (5) of Section 17 of the Act. Any order passed without complying with the provision of Sub-section (5) of Sec. 17 is vitiated in law. 14.Being asked to produce the final assessment order, Mrs. Padhi drew our attention to the letter dated 29.2.2012/2.3.2012 addressed to one Mr. B.B. Agrawal, Commissioner (AR), CESTAT, Central Excise, East Regional Bench wherein it is stated that the bill of entry No.000757 dated 14.10.2008 was finally assessed on 09.03.2010 and was also communicated to the party on 10.03.2010. Photocopy of the said bill of entry and the communication letter to the party are enclosed to the said letter. For proper appreciation of the case, it is necessary to produce the said letter. “GOVERNMENT OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE OFFICE OF THE DEPUTY COMMISSIONER CUSTOMS, CUSTOMS HOUSE PARADEEP. C. No.VIII-CUS-48 (12)PDP/2009Dated 10.03.10 To M/s. Visa Steel Limited, 11, Ekamra Kanan, Nayapalli, Bhubaneswar-751015. Dear Sir(s), This is to here by informa you that the Bill of Entry No.000757 dated 14.10.2008 previously assessed provisionally, pending submission of Original Documents, Demurrage Certificates, Bank signed Invoice & Test Result has been assessed finally under Section 18(2) of the Customs Act, 1962. Consequent upon finalization of the under mentioned B/E, the Deputy Commissioner, has been pleased to redeem the related P.D. Cum Test Bond and finalize the said B/E as detailed below : Sl. No. B/E No. & Date Description of goods And Value P.D. Bond No./dt. 1 000757/14.10.08 (MV Speedwell) Century PC Coal 507/08.09/14.10.08 Rs.3,60,00,000/- This is for your information please. Yours faithfully, (Sd/ J. Tudu) Superintendent (Import) Customs House, Paradeep.” From the aforesaid letter, it appears that the letter has been issued to the appellant under the seal and signature of the Superintendent (Import), Customs House, Paradeep. 1 000757/14.10.08 (MV Speedwell) Century PC Coal 507/08.09/14.10.08 Rs.3,60,00,000/- This is for your information please. Yours faithfully, (Sd/ J. Tudu) Superintendent (Import) Customs House, Paradeep.” From the aforesaid letter, it appears that the letter has been issued to the appellant under the seal and signature of the Superintendent (Import), Customs House, Paradeep. It further appears that the B/E No. 000757 dated 14.10.2008 previously assessed provisionally pending submission of original documents, demurrage Certificates, Bank signed invoice has been assessed finally under Section 18(2) of the Act, 1962. Consequent upon the finalization of the B/E, the D.C. has been pleased to redeem the related P.D.-cum-test bond and finalize the said B/E as per details given therein. This letter is claimed to be final assessment order by the Department. 15.We have already held that Sub-section (2) of Section 18 does not contemplate passing of any final assessment order. Moreover, perusal of the order dated 10.03.2010 as well as the Bill of Entry does not reveal any reason as to why the claim of the appellant, i.e., exemption from paying the Customs Duty vide Notification No.21/2002 dated 01.03.2002 has been rejected. It also does not reveal that any opportunity of hearing has been given to the appellant before rejecting its claim of exemption. As stated above, no other order of assessment passed in terms of Section 17 of the Act has been brought to our notice. 16.Question Nos. (v) and (vi) being interlinked, they are also dealt with together. There is no dispute over the legal proposition settled by the Hon’ble Supreme Court in the case of Priya Blue Industries Ltd. (supra). It goes without saying that refund flows from an order. So long as an order of assessment stands, the duty assessed would be payable as per the said order of assessment. If that order is not challenged, no refund can be claimed. The officer empowered to consider different claims for refund cannot review the order of assessment for which right of appeal has been created under the statute. In the instant case, as held above, no order of assessment as contemplated under Section 17(2) read with Section 17(5) has been passed. Therefore, there is no question of filing any appeal challenging the order of assessment. In the instant case, as held above, no order of assessment as contemplated under Section 17(2) read with Section 17(5) has been passed. Therefore, there is no question of filing any appeal challenging the order of assessment. 17.Section 128 of the Act, 1962 envisages for filing of appeal before the Commissioner (Appeal) by any person aggrieved by any decision or order passed under the Customs Act by any officer of Customs lower in rank than a Commissioner of Customs within 60 days from the date of communication to him of such decision or order. In the present case, no speaking order as contemplated under Section 17(2) read with Section 17(5) of the Act, assessing the appellant finally has been passed and communicated to the appellant. In absence of such order, there is no question of filing any appeal challenging the assessment order in terms of Section 128 of the Act. Consequently, the appellant is deprived of the statutory right of filing appeal as provided in Section 128 against the collection of duty from it without passing final order of assessment as contemplated under Section 17(5) of the Act. 18.Assuming that the petitioner has not filed any appeal challenging the provisional assessment order, he cannot be deprived of his statutory right to challenge a final assessment order. 19.In view of the above, we do not find any infirmity or illegality in the order of the appellate Tribunal holding that when an assessee is aggrieved by the assessment order, the recourse open to him is to file an appeal before the appellate forum instead of asking for refund directly by short-circuiting the process of appeal prescribed to be followed under the Act, before the appropriate authority. 20.In the peculiar facts and circumstances of the case, we direct the proper officer to pass a speaking order in terms of Section 17(2) read with Section 17(5) of the Act, 1962 after giving an opportunity of hearing to the appellant. we direct the proper officer to complete the entire exercise within a period of three months from today. We make it clear that we have not expressed any opinion on the merit of the appellant’s claim that it is exempted from payment of customs duty vide Notification No.21/2002 dated 01.03.2002. On receipt of the assessment order it is open to the appellant to avail any remedy/benefit permissible under law. We make it clear that we have not expressed any opinion on the merit of the appellant’s claim that it is exempted from payment of customs duty vide Notification No.21/2002 dated 01.03.2002. On receipt of the assessment order it is open to the appellant to avail any remedy/benefit permissible under law. 21.The appeal is accordingly disposed of with the above observations and direction. I. MAHANTY, J.I agree. Appeal disposed of.