2007 (6) TMI 350 - AT - Customs

Appeal to Appellate Tribunal - Jurisdiction - Valuation - Refund - Maintainability of refund claim

Summary

Issues:
1. Assessment of Bill of Entry without considering discounts
2. Claim for refund of duty based on alleged discounts
3. Validity of Memorandum of Understanding (MoU) as evidence
4. Jurisdiction of the Tribunal to consider new evidence not presented before lower authorities
5. Failure to file a proper refund claim

Analysis:
1. The appellants filed a Bill of Entry for clearance of imported "Rock Phosphate" with certain discounts. The assessing authority accepted the transaction value without considering the discounts claimed by the party. The party approached the Commissioner (Appeals) for a refund of duty, but the appeal was dismissed as not maintainable since no provisional assessment or refund claim was sought initially.

2. In the appeal against the Commissioner's order, the appellants argued that the assessment finality was not endorsed in the Bill of Entry and claimed that discounts were not considered. They submitted a refund claim and referred to a Memorandum of Understanding (MoU) with the supplier. However, the Tribunal found the MoU unreliable as it was not presented before the assessing authority or the first appellate authority. The Tribunal held that no claim for deduction was made during the assessment, and the Supreme Court's decision cited by the appellants was not applicable.

3. The Tribunal examined the MoU, which indicated a quantity rebate but was silent on quality discount and dispatch earning. The document was found to have a correction that was not authenticated, making it unreliable evidence. As the assessing authority did not have the opportunity to consider the alleged discounts, the Tribunal concluded that no question of law arose before them.

4. The assessment was based on the declared value in the invoice without any disclosed discounts or rebates. The MoU was not presented during assessment, and the duty was paid without protest. The Tribunal held that there was no basis for reassessment or refund as no proper refund claim was filed, and the lower appellate authority's decision was justified.

5. The appellants failed to provide evidence of a proper refund claim being filed, and the Tribunal upheld the dismissal of the appeal. The operative part of the order was pronounced on 18-6-2007, affirming the decision to dismiss the appeal.