2009 (2) TMI 576 - AT - Customs

Summary

Issues involved:
The judgment involves the issue of refund claims filed by the appellants without challenging the final assessment orders and the subsequent reversal of the original adjudicating authority's decision by the Commissioner (Appeals) based on non-challenge of assessment orders.

Summary:

Issue 1: Refund claims filed without challenging final assessment orders
The appellants imported Crude Palm olein/oil and other oils in bulk and filed 13 bills of entry for clearance. Duty was paid on the ullage quantity, which was more than the quantity shown in the bill of lading. Subsequently, the out turn reports showed that the received oil quantity was less than the quantity in the respective ullage report. The appellants filed refund claims for the excess duty paid based on a circular clarifying that shore tank received quantity should be the basis for levy of custom duty. The provisional assessments were finalized considering the ullage quantity. The original adjudicating authority sanctioned the refund claims after examining the facts and unjust enrichment angle. However, the Commissioner (Appeals) reversed this decision on appeal by the Revenue.

Issue 2: Challenge of final assessment orders
The Commissioner (Appeals) accepted the assessee's plea that they were not communicated the final assessment order, making it impossible for them to challenge it. The Commissioner directed the lower authorities to communicate the final assessment order to enable the appellants to file an appeal. The Revenue objected to the refund claims on the grounds of non-challenge of the final assessment order. The Tribunal noted that the issue of refund claims without challenging assessment orders was settled by previous decisions. The Commissioner (Appeals) directed the Revenue to serve a copy of the assessed Bills of Entry to the appellant for them to challenge it. The Tribunal upheld this direction, ensuring the ends of justice were met without causing prejudice to the appellant.

Conclusion:
The Tribunal upheld the Commissioner (Appeals) order directing the Revenue to serve a copy of the assessed Bills of Entry to the appellant for them to challenge it. The judgment ensures that the appellant has the opportunity to challenge the assessment order, addressing the procedural and technical aspect. The refund claims will be decided after the challenge to the assessment order.