2014 (9) TMI 1019 - AT - Customs

Claim of refund - customs duty were paid without claiming the benefit of notification 23/22 cus. - appellant contends that the refund claim cannot be rejected on the ground that appellant had not challenged the original assessment order and therefore appellants are not entitled to re-open the assessment orders. - Held that - it was the duty of the assessing authority to allow the benefit of Notification No. 23/02-Cus though erroneously not claimed by appellant in the bill of entry. I further hold that the object of sec. 27 (i) & (ii) is to cover those cases where the duty is paid by a person without an order of adjudication as in the present case where the appellant paid excess duty in ignorance of the Notification which allows it to pay concessional rate of duty merely after filing a bill of entry. Thus the appeal is allowed with consequential benefits. The appellant is entitled to refund of duty excess paid as per provisions of Noti. No. 23/02. - Refund allowed.

Summary

Issues involved:
Refund claim rejection based on not challenging original assessment order, entitlement to refund of excess duty paid, duty payment in ignorance of notification, duty payment without an order of adjudication.

Analysis:
1. Refund Claim Rejection: The appellant filed a refund claim based on not claiming the benefit of a notification at the time of clearance of goods. The adjudicating authority rejected the claim citing non-challenge of the original assessment order. The Commissioner (Appeals) upheld the rejection. The appellant contended that the claim cannot be rejected solely on the ground of not challenging the assessment order. The appellant relied on judgments distinguishing the cases referred to by the lower authorities, emphasizing that an appeal is not required against a Bill of Entry where no contest existed between the assessee and the department at the time of importation.

2. Entitlement to Refund of Excess Duty Paid: The appellant argued that the duty was paid in ignorance of a notification allowing concessional duty rates. The counsel cited a judgment of the Hon'ble Delhi High Court, which held that where duty is paid without an assessment order and in ignorance of a notification, there is no need to challenge an assessment order. The duty of the Assessing Officer to extend the benefit under a notification to the assessee at the time of importation was emphasized. The appellant relied on various judgments to support their case for refund.

3. Duty Payment in Ignorance of Notification: The assessing authority was held responsible for allowing the benefit of the notification, even if not claimed by the appellant in the bill of entry. The judgment referred to the duty paid by the appellant in ignorance of the notification, which entitled them to pay a concessional rate of duty. The ruling highlighted the duty payment without an order of adjudication, emphasizing the purpose of covering cases where duty is paid without such an order.

4. Duty Payment Without an Order of Adjudication: The Tribunal held that the assessing authority should have allowed the benefit of the notification, even if not claimed by the appellant initially. The duty paid by the appellant without an order of adjudication, in ignorance of the notification, was considered a valid ground for refund. The appeal was allowed, granting the appellant the refund of the excess duty paid as per the provisions of the notification. The adjudicating authority was directed to disburse the refund within a specified timeframe.