2009 (7) TMI 1212 - AT - Customs

Summary

Issues involved: Appeal against refund claim allowed based on Supreme Court decisions, challenge to assessment order for refund claim, maintainability of refund without challenging assessment order.

Summary:

Issue 1: Appeal against refund claim allowed based on Supreme Court decisions
The Revenue filed an Appeal against the impugned order where the refund claim of the Appellant was allowed based on the decision of the Hon'ble Supreme Court in the case of Karnataka Power Corpn. Ltd. v. Commissioner of Customs. The Revenue contended that in another case, Priya Blue Industries v. Commissioner of Customs, the Supreme Court held that without challenging the assessment, the refund is not maintainable. The Revenue cited various decisions including those of the Tribunal and the Hon'ble Bombay High Court to support their argument that in the absence of challenging the assessment order, the refund is not sustainable.

Issue 2: Challenge to assessment order for refund claim
The Respondent argued that the refund claim was filed because the finished goods were not assessed as per the law. The Commissioner (Appeals) had allowed the claim of the Respondents. However, it was found that the bill of entry was assessed by the proper officer and the duty was paid accordingly, without any challenge to the assessment order by the Respondents.

Issue 3: Maintainability of refund without challenging assessment order
After considering the decisions cited by the Revenue, it was held that in the absence of challenging the assessment order, the refund is not maintainable. The Hon'ble Bombay High Court's decision in the case of Karan Associates highlighted that in a situation where the assessment order is not challenged, the refund cannot be granted. Therefore, the impugned order was set aside, and the Appeal was allowed based on the merit in the Revenue's contention.

*(Pronounced and dictated in the open court)*