2010 (9) TMI 365 - AT - Customs

Refund Provisional assessment - The whole issue of whether finalization was challenged by the appellant or not has become totally academic, in as much as while whatever be the final assessment, once duty demand itself stands dropped alongwith consequential relief, there is nothing a miss in the appellant seeking and getting such consequential relief - That as per settled legal position, coal cess was never payable by the appellant which is not even in dispute - The provisions of Section 18 relevant to the issue clearly shows that the assessing officer has to indicate the amount paid and adjusted - In the case of Hind Agro Industries Ltd. Vs. Commissioner of Customs reported in (2007 -TMI - 3234 - DELHI HIGH COURT) in support of his contention that since no cess was payable, question of processing a claim of refund of cess in terms of Customs Act does not arise since payment was made mistakenly - Accordingly the impugned orders are set aside and appeals allowed

Summary

Issues:
1. Levy of coal cess on imported coal.
2. Finalization of provisional assessment and refund claims.
3. Challenge to the finalization of assessment.
4. Eligibility for refund and unjust enrichment.
5. Proper procedure for finalization of assessment under Section 18 of the Customs Act, 1962.

Analysis:
1. The appellant importer imported coal in bulk form and the customs department desired to levy coal cess at a certain rate. The appellant paid coal cess provisionally at a lower rate, and later show cause notices were issued for recovery of the differential amount. The adjudicating authority initially dropped the demand for coal cess, leading to refund claims by the appellants. Subsequent appeals were filed against the rejection of refund claims by the lower authorities.

2. The main contention raised by the learned advocate for the appellant was that the refund claims were not based on the finalization of assessment but on the dropping of the duty demand along with consequential relief. It was argued that the department did not appeal against the dropping of the coal cess demand. The advocate highlighted that the refund claims were made within the prescribed period and unjust enrichment did not apply, as evidenced by financial records.

3. The Tribunal observed that the procedure followed by the Revenue for finalization of provisional assessment was irregular. The assessing officer failed to provide the necessary details for final assessment as required under Section 18 of the Customs Act, 1962. The absence of a proper order of final assessment and the failure of the department to appeal against the decision not to levy coal cess were crucial factors in favor of the appellants.

4. The Tribunal also considered the argument regarding the eligibility for refund and the issue of unjust enrichment. It was noted that the appellants were not at fault for not challenging the letter of the superintendent, and therefore, the denial of refund claims based on this ground was not sustainable. The Tribunal referenced a decision of the Delhi High Court but clarified that only the High Court or Supreme Court could provide such relief, and the Tribunal could not go beyond the statute.

5. Ultimately, the Tribunal held that the lower authorities were incorrect in denying the refund claims based on the appellants not challenging the finalization of assessment. The impugned orders were set aside, and the appeals were allowed in favor of the appellants. The Tribunal emphasized the importance of following the proper procedure for finalization of assessment under Section 18 of the Customs Act, 1962 to ensure clarity and fairness in customs duties and refunds.