Judgment : Challa Kodandaram Ram, J. 1. This writ petition is filed by the petitioner seeking Writ of Mandamus, directing the 3rd respondent to refund the excess duty amount of Rs.51,43,147/- along with interest at applicable rates in compliance with the Final Order No.1492 of 2010, dated 29.11.2010 of the Hon’ble Customs, Excise & Service Tax Appellate Tribunal, Bangalore (in short “CESTAT”) and declare the letter dated 08.08.2012 issued by the respondents as illegal, arbitrary, contrary to the provisions of the Customs Act, 1962 (for short “the Act”) and unconstitutional and consequently direct the 3rd respondent-Assistant Commissioner of Customs & Central Excise, Krishnapatnam Port, Nellore to immediately release the refund amount claimed and pass such other order or others as deems fit. 2. The deponent is the Director of M/s Shiva Shankar Minerals Pvt. Ltd., Hyderabad (hereinafter referred to as “petitioner”). The petitioner’s company is an exporter of iron ore and on 25.09.2008 the petitioner exported iron ore fines vide Shipping Bill No.76/08-09 through Krishnapatnam Port on payment of customs duty and cess thereon as provided under Section 142 of the Act. However, as per the Circular issued by the 2nd respondent-the Central Board of Excise and Customs Department of Revenue (in short “CBEC”) vide Circular No.18/2008 Cus. Dated 10.11.2008 that for the exports made prior to 01.01.2009, the transaction value shall be calculated taking the ‘FOB’ price of the goods as cum duty price i.e. FOB is to be taken as inclusive of customs duty, but the Customs Department assessed the export duty on ‘FOB’ value of the goods without deducting the duty element from ‘FOB’ and the same is against the CBEC Circular dt.10.11.2008 and collected export duty of Rs.51,43,147/- in excess to that payable by the petitioner. Since the petitioner exported the iron ore prior to 01.01.2009, the value for determination of customs duty should have been the ‘FOB’ minus duty element. Petitioner exported iron ore 44,988 Dry Metric Tonnes, vide Shipping Bill No.76/2008-09, dated 25.09.2008, and paid an amount of Rs.2,91,18,483/-as export duty, provisionally as against Rs.2,39,75,336/- actually payable. 3. It is further averred that the petitioner filed refund application in prescribed format dated 05.01.2009 under Section 27 of the Act with the 3rd respondent, which was rejected by him vide Order-in-Original No.25/2009-R, dt.04.03.2009 on the ground that the petitioner has not challenged the shipping bill. 3. It is further averred that the petitioner filed refund application in prescribed format dated 05.01.2009 under Section 27 of the Act with the 3rd respondent, which was rejected by him vide Order-in-Original No.25/2009-R, dt.04.03.2009 on the ground that the petitioner has not challenged the shipping bill. On appeal, the appellate authority formulated three issues i.e. (i) Whether refund claim without challenging the assessment of the impugned Shipping Bill is maintainable in terms of Board’s Circular No.24/2004 dated 18.03.2004; (ii) Whether assessment of the impugned Shipping Bill is provisional or final and (iii) Whether the calculation adopted by the Adjudicating authority treating the FOB value as transaction value and that duty needs to be paid on the transaction value is correct? 4. The learned counsel for the petitioner had relied on the judgment of the Supreme Court reported in Ranbaxy Laboratories Ltd., Vs. Union of India (2011(273) E.LT.3 (S.C.), wherein it was held as follows: “9. It is manifest from the afore-extracted provisions that Section 11BB of the Act comes into play only after an order for refund has been made under Section 11B of the Act. Section 11BB of the Act lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under sub-section (1) of Section 11B of the Act, then the applicant shall be paid interest at such rate, as may be fixed by the Central Government, on expiry of a period of three months from the date of receipt of the application. The Explanation appearing below Proviso to Section 11BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise but by an Appellate Authority or the Court, then for the purpose of this Section the order made by such higher Appellate Authority or by the Court shall be deemed to be an order made under sub-section (2) of Section 11B of the Act. It is clear that the Explanation has nothing to do with the postponement of the date from which interest becomes payable under Section 11BB of the Act. It is clear that the Explanation has nothing to do with the postponement of the date from which interest becomes payable under Section 11BB of the Act. Manifestly, interest under Section 11BB of the Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under Sub-section (1) of Section 11B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under Section 11BB of the Act becomes payable.” 5. Further, the learned counsel for the petitioner relied on the judgment of the Supreme Court reported in Asia Pacific Commodities Ltd., Vs. Assistant Commr. Of Cus., Kakinada-I (2012 (280) E.LT. 481 (A.P.) wherein it was held as follows: “16. The appellants exported long grain rice under various shipping bills. The cess paid for each consignment is not separately shown though it is prominently mentioned in each of the shipping bills for export with cess. A perusal of these would show that the invoice value and FOB value are the same. The Revenue would rely on Section 28C of the Act which mandates that every person liable to pay the duty on any goods shall prominently indicate in all the documents the amount of duty which will form part of the price at which the goods are sold. The cess paid is not separately mentioned. In such an event Section 28D of the Act comes into operation and it shall be deemed that the incidence of duty is passed on to the buyer. The non-mention of the cess in the shipping bills for each consignment and the invoice value and FOB value are the two factors which are strongly relied on by the appellants to support their plea that the cess was borne by them and that it was not passed on to the foreign buyer. They also place reliance on the sale contract and Incoterms. They also place reliance on the sale contract and Incoterms. There is no dispute that they are the official rules of International Chamber of Commerce of trade terms intended to facilitate conduct of international trade and are binding on all those who are engaged in International trade. After perusing these as well as the shipping bills we are convinced that FOB value (invoice) does not and could not have included the cess paid by the appellants and that the appellants did not pass on incidence of duty to the buyer. In the absence of any such material, the equitable principle of unjust enrichment does not bar refund claims under Section 27 of the Act.” 6. Finally, the learned counsel also relied on the judgment reported in Commissioner of Customs, Cochin Vs. Shree Simandar Enterprises (2012 (283) E.L.T. 369 (Ker.), wherein it was held as follows: “6. I have considered the rival contentions in detail. I am of the opinion that the stand of the petitioner in the review petition is totally hyper-technical and unreasonable. When an appellate authority allows an appeal filed against imposition of tax, duty, fine, penalty etc., it is the bounden duty of the assessing authority, as part of a democratic government, to refund the amounts covered by orders of the appellate authority, when appeals are allowed fully or partially. The same shall be refunded even without a formal request for the same. Certainly, on a request made for refund, the same shall be refunded immediately, failing which the assessing authority is bound to pay interest on the amount from the date when the refund became due. This position has been formally accepted by the Government of India also based on the decisions of the High Courts and the Supreme Court as is evident from Exts.P3 and P7. When by Ext. P3 and P7, the Government of India themselves have reminded all the officers under them of the necessity to make refunds consequent on appellate orders expeditiously, the petitioner in the review petition cannot act as a super government, insisting on documents, production of which is not mandated by any rule, order or circular.” 7. When by Ext. P3 and P7, the Government of India themselves have reminded all the officers under them of the necessity to make refunds consequent on appellate orders expeditiously, the petitioner in the review petition cannot act as a super government, insisting on documents, production of which is not mandated by any rule, order or circular.” 7. After hearing both the parties concern, the appellate authority in an elaborate order held in its Order-in-Appeal No.7/2009(G) Cus., dt.12.08.2009 that the filing of the refund claim itself is a challenge of assessment order and the appellant is entitled to claim reassessment in terms of their refund application. The relevant portion of findings have been extracted hereunder:- “(8) I have given due consideration to the rival submissions. After perusing all the case laws relied by the appellants in support of their various arguments, I find substance in their arguments. However, I wish to discuss only the case laws, which are more relevant to the facts of the case. I have perused the impugned Shipping Bill and observed that the assessment is done subject to payment of differential duty if any by the exporter based on price adjustment as declared in the annexure-A of the Contract of purchase. I have perused the said Contract of purchase dated 18.09.2008. The clause 5 of the contract of purchase refers to the price adjustments depending upon the actual ‘Fe’ content and depending upon other elements such as excess of ‘Phosphorous”, ‘Sulphur” etc., which shall be determined by chemical analysis of the export goods by the Customs authorities. It shows clearly that the assessment was done subject to the outcome of the Customs examination report in respect of actual ‘Fe’ content and percentage of other elements in the export goods. In regard to the CBEC Circular No.24/04-Cus dated 18.03.2004, and various case laws relied by the adjudicating authority, I find that the said circular itself is based on the orders of the Tribunal holding that the ratio of the decision in the case of “Commissioner of Central Excise, Kanpur Vs. Flock India Pvt. ltd.,” is applicable to Customs cases as well. Flock India Pvt. ltd.,” is applicable to Customs cases as well. I have carefully gone through the case laws relied upon by the adjudicating authority and find that they are clearly distinguishable from the facts of the present case in as much as, the assessment in the instant case cannot be considered final by any stretch of imagination for the simple reason that the same was done subject to the outcome of the analysis of the samples by the Chemical Examiner. …… …….. …….. …….. (intentionally omitted as not necessary). In view of the settled position in law, I am inclined to hold that separate appeal against the order of assessment is not required to be filed as filing of refund claim is itself is challenge of assessment order.” 8. Finally, after discussion the appellate authority found as follows: ‘‘(8.4) In the light of the above findings, I am inclined to hold that, the assessment of impugned Shipping Bill is a conditional order and not a final assessment; that separate appeal against the order of assessment is not required to be filed as filing of refund claim is itself is challenge of assessment order; that refund claim cannot be rejected irrespective of whether the assessment is final or provisional; and that omission can be corrected under Section 154 of the Customs Act, 1962. The Assistant Commissioner was bound to correct the error or omission as provided under Section 154 and reassess the shipping bill under Section 17(4) of the Customs Act, 1962. Therefore, the rejection of the claim for refund is not justifiable in law. (9) The other point for decision is, whether the FOB price, for the purpose of assessment under Section 14(1) of the Customs Act, 1962, is to be taken as the assessable value or the FOB price, treating it as inclusive of the duty component and working backwards to arrive at the assessable value, has to be taken in terms of the Board’s Circular No.18/2008-Cus dated 10.11.2008.” (9.1) ………… (intentionally omitted as not necessary) (9.2) From a plain reading of the above circular it is evident that, export duty and cesses have to be calculated by taking the FOB price declared by the exporter as the cum-duty price and working backwards from the FOB price. Board has specifically clarified that this practice is to be followed up to 31.12.2008, since the appellants have paid the customs duty before 31.12.2008, I find that the Board’s circular is rightly applicable in the instance case and hence the transaction value for calculation of export duty should have been taken as FOB value cum-duty price. The conditional assessment of the Shipping Bill by the Assistant Commissioner was thus clearly contrary to the specific instructions of the Board vide letter dated 10.11.2008 reproduced above. When the assessment of the Shipping Bill was contrary to the policy decision of the Board, I can not agree with the contention of the Assistant Commissioner that there was no legal infirmity in the impugned assessment. The Assistant Commissioner was required to correct the error in the assessment through reassessment. (9.3) In view of the discussions at preceding paras, I am inclined to accept that FOB price as the cum-duty price and needs to reassess the Shipping Bill after deducting the duty element from the FOB price, in accordance with the policy decision of the CBEF vide Circular No.18/2008 dated 10.11.2008, as provided under Section 17(4) of the Customs Act, 1962. I also hold that the amount paid by the Appellants, in excess of the duty payable on the goods exported, should be refunded to the appellants in the light of the Board’s Circular dated 10.11.2008 as well as various decisions of the Tribunal, High Courts and Supreme Court discussed in the preceding paras which throws light in deciding that, the assessment of impugned Shipping Bill on a conditional order and not a final assessment; that separate appeal against the order of assessment is not required to be filed as filing of refund claim is itself is challenge of assessment order; that refund claim cannot be rejected irrespective of whether the assessment is final or provisional; and that omission can be corrected under Section 154 of the Customs Act, 1962.” 9. A counter affidavit has been filed by the 5th respondent and on behalf of other respondents. Para Nos.1 to 8 of the counter affidavit is only narration of the proceedings beginning with the petitioner exporting the iron ore and method and manner under which the petitioner’s claim for refund of excess duty, vide their refund application dated 05.01.2009, was dealt with culminating in the proceedings before the Tribunal are set out in detail. Para Nos.1 to 8 of the counter affidavit is only narration of the proceedings beginning with the petitioner exporting the iron ore and method and manner under which the petitioner’s claim for refund of excess duty, vide their refund application dated 05.01.2009, was dealt with culminating in the proceedings before the Tribunal are set out in detail. In para Nos.9 to 11, the respondent had expressed their view of what the Tribunal’s order mean details kind of calculations were sought to be given and thereby disputing that the petitioner’s entitlement to the amounts of refund as claimed.10. At this stage, we may record that what has been stated in Para Nos. 9 to 11 are the contentions/objections which have been raised for the first time before this Court in the affidavit and on perusal of the Order-in-Original, the order in appeal and final order of the Tribunal, one does not find these contentions/objections having been raised by the respondents in the original proceedings. As a matter of fact, the petitioner by filing reply affidavit in para-7 categorically stated as follows: “the contents of para 9, 10 and 11 are extraneous to the present proceedings. In the appeal filed before the Hon’ble CESTAT none of these contentions and none of these difficulties were raised. The grounds of appeal were limited to one contention that the assessment order was not challenged and in the absence of challenge refund could not be sanctioned. The grounds not raised in appeal cannot be raised in the writ petition. The difficulties in the implementation of the order passed and how the final order passed is to be implemented could be addressed to the Hon’ble CESTAT seeking clarification. The respondents are required to sanction refund of amount by interpreting the order as they think fit.” 11. Further, in Para 12 of the counter affidavit a ground of unjust enrichment in terms of Section 27(1) of the Act was raised. In the reply affidavit filed by the petitioner it was averred as follows: “8. It is submitted that the averment in para 12 were not raised before the Hon’ble CESTAT in the grounds of appeal. The respondents have not raised the issue of unjust enrichment while issuing the Show Cause Notice. The refund claim was proposed to be rejected on the sole ground that the assessment order was not challenged. It is submitted that the averment in para 12 were not raised before the Hon’ble CESTAT in the grounds of appeal. The respondents have not raised the issue of unjust enrichment while issuing the Show Cause Notice. The refund claim was proposed to be rejected on the sole ground that the assessment order was not challenged. The refund application is deemed to be completed in all respects. C.B.E.C’s Customs Manual in para 4.2 of chapter 14 has issued the following instructions, which are binding on the respondents. 4.2 Where on scrutiny, the application is found to be complete in all respects the customs issues an acknowledgment in the prescribed Form. However, in case the application is found to be incomplete, the Customs will return the same to the applicant, pointing out the deficiency. The applicant has to resubmit the application after making good the deficiency.” 9. Without prejudice to the above contention it is submitted that the refund claim shows that we have submitted final invoice and the bank realization certificate. Unless the bank realization certificate is proved to be wrong, the same has to be considered for deciding whether incidence of duty has been passed on to the buyer. The petitioner was always willing to provide all the details that the Respondents deemed necessary. The respondents are required to raise all the grounds for rejection of refund in the Show Cause Notice and not at a later stage.” 12. While we are on this point, it may be useful to refer to the order of the appellate commissioner in Order-In-Original No.7/2009(G) Cus., dated 12.08.2009, which was in fact confirmed by the CESTAT, the last fact finding authority under the Act held as follows: “6. I have carefully gone through the case records, Appeal memorandum and the submissions made both oral as well as written, at the time of personal hearing. The issues to be decide are (i) Whether refund claim without challenging the assessment of the impugned Shipping Bill is maintainable in terms of Board’s Circular No.24/2004 dated 18.03.2004; (ii) Whether assessment of the impugned Shipping Bill is provisional or final and (iii) Whether the calculation adopted by the Adjudicating authority treating the FOB value as transaction value and that duty needs to be paid on the transaction value is correct? Or treating the F.O.B. value as cum-duty value, duty element should reduce from the F.O.B. value for the purpose of levying export duty in the light of the Board’s circular No.18/2008-Cus dated 10.11.2008.” 13. The Tribunal also held as follows: “(8.3) In the case of “Union of India Vs. Aluminum Industries Ltd.,” the Hon’ble High Court of Kearala held that, “assessment made under wrong impression about prevalent rate of duty is a case of omission and not a case of short levy”. Further, in the case of “Commissioner of customs, new Delhi Vs. Hero Honda Motors Ltd.,” the Tribunal after duly considering the Apex Court’s decisions in the cases of “Karnataka Power Corporation”, “Flock India” and “Priya Blue” has held that the assessee cannot be denied the benefit merely because he did not refer appeal against the assessment order and that the authorities ought to take remedial action under Section 154 of the Customs Act. Similarly, in the case of, “Bennet Coleman & Co. Ltd. Vs. CC, Bangalore” the Tribunal observed that omission can be corrected under Section 154 of the Customs Act, 1962. The Tribunal held that it is the duty of the assessing authority to assess the duty correctly and the omission can be corrected under section 154 of the Customs Act. The Tribunal has allowed the appeal by extending the refund entitled of amount collected without extending benefit of unconditional exemption notification. While allowing the appeal, the Tribunal also held that, for the fault of the assessing officer, if the importer is compelled to pay huge revenue, it would definitely amount to miscarriage of justice. I find that the ratio of the said decision can be made applicable to the instant case also as, it is for the authorities to assess the duty correctly and not to go by what the assessee represents to them as the correct duty. (8.4) In the light of the above findings, I am inclined to hold that, the assessment of impugned Shipping Bill is a conditional order and not a final assessment; that separate appeal against the order of assessment is not required to be filed as filing of refund claim is itself is challenge of assessment order; that refund claim cannot be rejected irrespective of whether the assessment is final or provisional; and that omission can be corrected under Section 154 of the Customs Act, 1962. The Assistant Commissioner was bound to correct the error or omission as provided under Section 154 and reassess the shipping bill under Section 17(4) of the Customs Act, 1962. Therefore, the rejection of the claim for refund is not justifiable in law.”14. We have considered the rival submissions and we are in agreement with the learned counsel for the petitioner that merely because an SLP has been filed before the Supreme Court against the order of the Tribunal, the respondents cannot withhold the money, which is otherwise determined as the entitlement of the petitioner. As observed by the Appellate Authority in Order-in-Appeal No.07/2009(G) cus. Dt.12.08.2009, primarily it is the duty of the authorities to levy, charge and collect the appropriate duty as applicable. In this case it is a finding of the authorities to the effect that at the time of clearance of the goods, petitioner had paid an excess amount of duty provisionally, and the petitioner was entitled to refund such excess amount. On the objections raised by the respondents for the first time in the writ petition, this court in exercise of the extraordinary jurisdiction under Article 226 of Constitution of India, cannot and should not enter into the arena, which has already been decided by the lower authorities and confirmed by the last fact finding authority viz., CESTAT by its order dated 29.11.2010. 15. In the light of the law laid down by the Supreme Court in the judgments referred to supra, we are of the opinion that the petitioner is entitled to the refund as claimed by him and in that view of the matter we direct the respondents to give effect to implement the Order-in-Appeal No.7/2009(G) Cus., dt.12.08.2009 as confirmed by the Tribunal by its order dated 29.11.2010. We also clarify that the petitioner is entitled to the interest as applicable on the refund amount under the relevant provisions of the Act. 16. Accordingly, the writ petition is allowed. No order as to costs. Miscellaneous petitions, if any, shall stand closed.