2011 (6) TMI 255 - AT - Customs

Refund claim - duty paid in excess at the time of clearance - The original adjudicating authority rejected the refund claim on the ground that the appellants have not challenged the assessment but only filed the refund claim against the Order-in-Original - Held that the refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act 1962 and which claim will fall under clause (ii) of sub-section (1) of Section 27 - Considering the facts and the legal interpretations I remand the case to the original adjudicating authority for denovo adjudication and to decide afresh the matter in accordance with law

Summary

Issues:
Refund claim validity under Section 27 of the Customs Act based on non-challenged assessment.

Analysis:
The case involved a refund claim by M/s. Baccarose Perfumes & Beauty Products Pvt. Ltd., Kandla for duty paid in excess during the clearance of cosmetics and perfumes. The original authority rejected the claim, stating that challenging the assessment was necessary, not just filing a refund claim. The Commissioner (Appeals) upheld this decision, emphasizing that challenging the assessment directly was crucial. The appellant cited various judgments to support their claim, including cases like Teej Impex Pvt. Ltd. and Aman Medical Products Ltd.

The tribunal analyzed these judgments and found the High Court of Delhi's ruling in Aman Medical Products Ltd. vs. CC Delhi to be most relevant. The court clarified that Section 27 allows duty refund even without an assessment order challenge, especially in cases where duty is paid due to ignorance of relevant notifications. The tribunal distinguished cases like CCE, Kanpur v. Flock (India) Pvt. Ltd. and Priya Blue Industries Ltd., where assessment orders existed, making it necessary to challenge them directly. In cases without a disputed assessment order, like the present one, the right to file a refund claim remains valid under Section 27.

Based on the High Court's observations, the tribunal remanded the case for fresh adjudication, instructing the original authority to reconsider the matter in line with the law and granting the appellant a fair opportunity. This decision aligns with the interpretation of Section 27 and ensures that the appellant's right to a refund claim is upheld, even without challenging the assessment directly.