2008 (7) TMI 716 - AT - Customs

Refund - non-challenge of Assessment order - Held that - rejection of the refund claim on the ground that the assessment order was not challenged is not at all correct - matter remanded to the Original Authority to examine the aspect of unjust enrichment.

Summary

Issues:
Challenge to assessment of duty paid under protest, application of the ratio in Priya Blue Industries Ltd. v. CC (Prev.), consideration of unjust enrichment, entitlement to refund of higher duty paid.

Analysis:

Challenge to Assessment of Duty Paid Under Protest:
The appellant imported newsprint, and upon the first test revealing the goods as other than newsprint, they paid the duty under protest. Subsequent retesting confirmed the goods as newsprint. The lower authority rejected the refund claim citing non-challenge to the assessment. The appellant argued that their actions of paying under protest and requesting a retest constituted a challenge to the assessment. The judge agreed, highlighting a similar case where the Tribunal allowed a refund in identical circumstances. The judge emphasized that the appellant's resistance to the department's stand from the beginning amounted to a challenge to the assessment, contrary to the lower authority's view.

Application of the Ratio in Priya Blue Industries Ltd. v. CC (Prev.):
The Departmental Representative raised concerns about unjust enrichment not being examined and supported the lower authorities' decisions. However, the judge found that blindly applying the ratio of the Priya Blue case was not appropriate in this situation. The judge noted that the appellant had not violated any customs laws and was not at fault in the imports. The judge concluded that the rejection of the refund claim based on the assessment not being challenged was incorrect. The judge referenced a Chennai Bench decision to support the appellant's entitlement to a refund of the higher duty paid.

Consideration of Unjust Enrichment:
While acknowledging the appellant's entitlement to a refund, the judge emphasized the need to examine the aspect of unjust enrichment in accordance with the law. The judge directed the matter to be remanded to the Original Authority for a careful examination of unjust enrichment and issuance of a suitable order within three months.

In conclusion, the judgment recognized the appellant's challenge to the assessment, disagreed with the lower authority's reasoning, and directed a review of unjust enrichment before granting the refund of the higher duty paid.