2007 (11) TMI 3 - HC - Customs

Refund - Assessee claimed for refund on the ground that they paid excess amount of custom duty under bonafide belief - Held that assessee claim for refund was not correct and dismissed

Summary

Issues:
1. Delay in filing the appeal and its condonation.
2. Incorrect assessment of customs duty on a Bill of Entry.
3. Rejection of refund application for excess customs duty.
4. Claim for refund despite no challenge to the assessment.
5. Applicability of legal precedents in refund claims.
6. Rejection of the appeal based on legal precedents.
7. Final dismissal of the appeal.

Analysis:
1. The judgment begins by allowing exemptions subject to just exceptions and condoning the delay in filing the appeal, which is disposed of accordingly.

2. The Assessee challenges the incorrect assessment of customs duty on a Bill of Entry dated 20th January, 2005, related to the import of core polyester sewing threads. The Assessee claims to have paid excess customs duty due to a bona fide mistake and seeks a refund of the difference between the actual amount and the assessed sum.

3. Despite filing a refund application for the excess customs duty, it was rejected by the Assistant Commissioner of Customs, a decision upheld by the Commissioner (Appeals) and the Customs, Excise and Service Tax Appellate Tribunal (CESTAT).

4. The Assessee files the present appeal without challenging the assessment made on the Bill of Entry, citing a legal precedent to support the claim for a refund even without challenging the assessment order directly.

5. The court distinguishes the cited legal precedent, Shri Vallabh Glass Works Ltd., from the current case, highlighting two Supreme Court decisions - Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. and Priya Blue Industries Ltd. v. Commissioner of Customs, which support the Revenue's position that refund claims are not maintainable if the assessment order is not challenged.

6. Relying on the Supreme Court decisions, the court rejects the Assessee's appeal, emphasizing that the legal principles established in Flock (India) Pvt. Ltd. and Priya Blue Industries Ltd. are binding. The court dismisses the appeal despite the Assessee's reference to a CESTAT decision and an appeal pending in the Supreme Court.

7. Finally, the court dismisses the appeal, affirming the rejection based on the established legal precedents and the lack of merit in the Assessee's arguments.

This comprehensive analysis of the judgment covers the issues raised, the legal arguments presented, and the court's reasoning leading to the final dismissal of the appeal.