2009 (5) TMI 671 - AT - Customs

Summary

Issues:
1. Denial of refund claim for imported machinery spares due to failure to claim exemption from special additional duty of customs.
2. Applicability of Notification No. 22/99-Cus requiring a declaration for exemption.
3. Legal position on refund claims contrary to assessment.
4. Possibility of seeking amendment of Bill of Entry under Section 149 of the Customs Act.

Analysis:

1. The Appellate Tribunal upheld the denial of a refund claim amounting to Rs. 89,269 filed by the appellants for imported machinery spares. The Commissioner (Appeals) had sustained the denial as the appellants omitted to claim exemption from special additional duty of customs (SAD) as required by Notification No. 22/99-Cus. This notification mandated a declaration with the Bill of Entry stating that the imported goods would be sold and not consumed further challenging the assessment. The Tribunal cited precedents like Priya Blue Industries Ltd. v. CC (P) and CCE, Kanpur v. Flock (India) Pvt. Ltd., where the Apex Court held that a refund claim contrary to the assessment cannot be entertained unless the assessment is successfully challenged. Consequently, the Tribunal dismissed the appeal, citing the Apex Court's ratio.

2. The Tribunal acknowledged the argument by the appellant's counsel regarding seeking an amendment of the Bill of Entry under Section 149 of the Customs Act to claim the exemption now. The counsel contended that the lower authorities should be directed to entertain such an application. The Tribunal recognized that the appellants indeed have the option to request an amendment of the Bill of Entry under Section 149 of the Customs Act. It directed the proper officer of customs to consider the application for amendment and dispose of it in accordance with the law.

3. In conclusion, the Tribunal's decision centered on the failure of the appellants to claim exemption from SAD as required by the relevant notification, leading to the denial of the refund claim. The legal position established by the Apex Court's judgments emphasized that refund claims contrary to the assessment cannot be entertained without successfully challenging the assessment. The Tribunal also highlighted the option available to the appellants to seek an amendment of the Bill of Entry under Section 149 of the Customs Act, directing the customs officer to consider and process such requests appropriately.

This comprehensive analysis delves into the issues of denial of refund claim, the legal implications of failing to claim exemption, the precedents guiding refund claims contrary to assessment, and the avenue of seeking amendment under the Customs Act, providing a thorough understanding of the Tribunal's judgment.