2013 (12) TMI 1401 - AT - Customs

Denial of refund claim of customs duty - Import of copper concentrate - Appellant filed refund claim of 2% education cess paid by them on account of basic customs duty, which was debited through D.E.P.B. scrip vide their refund claim dated 30-12-2005 - Held that - 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. Admittedly, the said assessment order having not been challenged by the appellant - Following decision of Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) 2004 (9) TMI 105 - SUPREME COURT OF INDIA - Decided against assessee.

Summary

Issues involved:
Refund of 2% education cess on basic customs duty debited through D.E.P.B. scrip.

Analysis:

1. Background and Provisional Assessment:
The appellant imported copper concentrate and cleared it under 11 bills of entry, which were provisionally assessed. During provisional assessment, the appellant paid customs duty through D.E.P.B. scrip and 2% education cess on CVD and total customs duty through TR-6 challans.

2. Refund Claim and Denial:
The appellant filed a refund claim for the 2% education cess paid on basic customs duty debited through D.E.P.B. scrip. However, the claim was denied by the authorities below citing that the final assessment of bills of entry was not challenged by the appellant. The denial was based on the law laid down by the Hon'ble Supreme Court in a previous case.

3. Legal Precedents and Arguments:
The appellant's advocate referred to a decision of the Hon'ble Delhi High Court in another case, highlighting that the judgments cited by the authorities would not apply when there is no assessment order in dispute or contest, and a refund claim is filed on any duty borne by the appellant.

4. Tribunal's Decision:
The Tribunal noted that the assessments were initially provisional but later finalized. Since there was an assessment order involving a dispute between the appellant and the Revenue, and the appellant did not challenge this order, the Tribunal found no merit in the appeal. The Tribunal held that the law declared by the Hon'ble Supreme Court applied in this case, and thus rejected the appeal.

5. Conclusion:
The Tribunal's decision, pronounced on 11-5-2011, emphasized that the lack of challenge to the final assessment order by the appellant meant that the refund claim could not be entertained. The Tribunal's ruling was based on the principle that when there is an assessment order with a dispute between the parties, failure to challenge it precludes subsequent questioning of its correctness through a refund claim.