2011 (4) TMI 214 - AT - Customs

Refund - Circular No. 5/2005-Cus dated 31.01.2005 - refund claim stands denied by the authorities below primarily on the ground that final assessment of bills of entry was not put to challenge by the appellant - Held that it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that adjudicating authority had committed an error in passing his order - assessments were originally provisional and were finalised subsequently. As such, admittedly, their was an assessment order involving lis between the appellant and the Revenue. The said lis was decided in favour of the Revenue by the final assessment order - Appeal is rejected

Summary

Issues:
Refund of 2% education cess on basic customs duty debited through DEPB scrip.

Analysis:
The appeal in question revolves around the refund claim of Rs. 46,00,139/- concerning the 2% education cess on basic customs duty debited through DEPB scrip. The appellant imported copper concentrate under 11 consignments and cleared them provisionally under 11 bills of entry. During provisional assessment, the appellant paid customs duty through DEPB scrip and 2% education cess on CVD and total customs duty through TR-6 challans. Subsequently, at the final assessment, the 2% education cess on basic customs duty, not initially paid by the appellant, was levied against them and recovered as per Board Circular No. 5/2005-Cus dated 31.01.2005.

The authorities denied the refund claim primarily because the final assessment of bills of entry was not contested by the appellant. This denial was based on the legal precedent set by the Hon'ble Supreme Court in the case of Priya Blue Industries Limited vs. Commissioner. However, the appellant argued citing a decision of the Hon'ble Delhi High Court in Aman Medical Products Limited vs. Commissioner of Customs, Delhi, which distinguished situations where there was no assessment order or dispute/contest, allowing for refund claims on duty borne by the appellant.

The Tribunal, after careful consideration, found that the legal principles laid down by the Hon'ble Supreme Court applied in this case. The assessments were originally provisional and later finalized, resulting in an assessment order involving a dispute between the appellant and the Revenue. Since the appellant did not challenge this assessment order, the Tribunal concluded that the refund claim could not be entertained. Therefore, the appeal was rejected based on the established legal precedents and the lack of merit in challenging the final assessment order.

This judgment highlights the significance of challenging assessment orders to maintain the right to claim refunds and the application of legal principles established by higher courts in determining the validity of refund claims.