2014 (12) TMI 861 - AT - Customs

Denial of refund claim - effective date of change in the rate of duty on export goods - Notification No. 77/2008 dated 13/06/2008 - Held that - In respect of six refund claims on which also the respondent has discharged export duty liability Revenue hadsuo motu sanctioned refund without taking the ground that the original assessment had not been challenged. The only ground taken in the Assistant Commissioner s order for refusing the refund in respect of two shipping bills was Notification 77/2008 dated 13/06/2008 is effective from the midnight of 13/06/2008. It is a settled position in law that a Notification issued on a particular date takes effect from the said date unless otherwise specified in the said Notification. In the present case there is no other date specified in the Notification as to the date of its effect. Therefore Notification 77/2008 dated 13/06/2008 is effective from 00 hours of 13/06/2008. Since Let Export Order has been given on 13/06/2008 the rate of duty relevant for assessment would be the rate prevalent on 13/06/2008. Consequently the respondent would be eligible for the benefit of the said Notification. In these circumstances we do not find any infirmity in the order passed by the lower appellate authority. Revenue cannot at the same time take the view that in respect of six refund claims which they had sanctioned the assessment order need not be challenged and the party would be entitled for the refund whereas in respect of two shipping bills only the question of non-challenging of assessment order arise. In any case this was not the ground on which refund claim had been rejected. Revenue has not challenged the sanction of six refund claims by the original refund sanctioning authority. Therefore they cannot be found to entertain a different ground for rejection of refund claim in respect of two refund claims alone. - Refund granted.

Summary

Issues:
1. Interpretation of Notification No. 77/2008 dated 13/06/2008.
2. Eligibility for exemption based on the date of Let Export Order.
3. Maintainability of refund claim without challenging the assessment order.

Analysis:

Issue 1: Interpretation of Notification No. 77/2008 dated 13/06/2008
The judgment revolves around the interpretation of Notification No. 77/2008 dated 13/06/2008. The key contention was whether the notification was effective from the midnight of 13/06/2008 or from a different specified time. The lower appellate authority held that the notification came into effect from midnight of 13/06/2008, making the assessee eligible for exemption. The appellate tribunal concurred with this interpretation, stating that unless specified otherwise, a notification takes effect from the date of issuance. Therefore, as the Let Export Order was given on 13/06/2008, the relevant duty rate would be the one applicable on that date, entitling the respondent to the benefit of the notification.

Issue 2: Eligibility for exemption based on the date of Let Export Order
The crux of the matter was the eligibility of the assessee for exemption based on the date of the Let Export Order. The Revenue contended that since the assessment order was not challenged, the refund claim was not maintainable as per a Supreme Court judgment. However, the tribunal noted that the Revenue had already sanctioned refunds for six claims without raising the issue of challenging the assessment order. The tribunal emphasized that the ground for rejecting refund claims in two instances was solely based on the effective date of Notification 77/2008. As the notification was deemed effective from midnight of 13/06/2008 and the Let Export Order was on the same day, the respondent was deemed eligible for the refund.

Issue 3: Maintainability of refund claim without challenging the assessment order
The tribunal highlighted the inconsistency in the Revenue's stance regarding the necessity of challenging the assessment order for refund claims. While the Revenue had sanctioned refunds for six claims without contesting the assessment order challenge, they raised this issue only for two specific claims. The tribunal emphasized that the ground for rejecting the refund was not related to the non-challenge of the assessment order. As a result, the tribunal found that the Revenue could not reject the refund claim for the two shipping bills based on a different ground than the one used for the other claims.

In conclusion, the tribunal allowed the refund claims to the respondent, rejecting the appeal filed by the Revenue based on the interpretation of the notification, the eligibility for exemption, and the maintainability of the refund claim without challenging the assessment order.