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2015 (1) TMI 841 - AT - CustomsDenial of refund claim - whether appellant is entitled to refund of ₹ 13,33,792/- which was paid by the appellant as a result of an order passed by Gujarat High Court - Held that - there was a valuation dispute regarding inclusion of cost of transportation and insurance in the assessable value of the Ships imported for ship breaking. This issue was decided against the appellant vide CESTAT order No. A/359/WZB/2004/C-1 - M/125/WZB/04/C-1 dated 10.03.2004. Learned advocate appearing on behalf of the appellant could not bring to the notice of the bench whether any appeal was filed by the appellant against CESTAT order dated 10.3.2004 where issue on merits was decided against them. Once an issue is decided against the appellant on merits, it cannot be appreciated as to how refund is being pressed on the issue without challenging that order dated 10.3.2004 passed by CESTAT. - Decided against assesse.
Issues:
1. Entitlement to refund of duty paid by the appellant. 2. Valuation dispute regarding inclusion of transportation and insurance costs in assessable value. 3. Appeal against CESTAT order dated 10.03.2004. 4. Observations of the adjudicating authority regarding the refund claim. 5. Decision of the first appellate authority. Analysis: 1. The primary issue in the appeal was whether the appellant was entitled to a refund of Rs. 13,33,792/- paid as a result of an order dated 28.10.2010 by the Hon'ble Gujarat High Court. The first appellate authority had upheld the order rejecting the refund claim, emphasizing that the assessment of the bill of entry by including transportation and insurance costs in the assessable value was correct. 2. The dispute revolved around the valuation of imports for ship breaking, specifically the inclusion of transportation and insurance costs in the assessable value. The CESTAT had previously ruled in favor of the department on this issue in an order dated 10.03.2004. The appellant failed to challenge this order, and without contesting it, pressing for a refund based on the same issue was deemed inappropriate. 3. The adjudicating authority, in rejecting the appellant's refund claim, referred to the CESTAT order dated 10.03.2004 and subsequent observations. The Commissioner (Appeals) had set aside an earlier order due to the matter being sub-judice before the High Court. However, the final judgment of the appellate authority confirming the inclusion of transportation and insurance costs in the assessable value rendered the refund claim invalid until a favorable decision in Tax Appeal No. 954 of 2005. 4. The adjudicating authority's decision was based on the understanding that the CESTAT order from 2004 had upheld the department's assessment, making the duty amount paid by the importer correct. As the issue had not been challenged effectively through the appropriate legal channels, the claim for refund was deemed premature and not sustainable. 5. Considering the above facts and legal precedents, the first appellate authority's decision was upheld, and the appellant's appeal for a refund was rejected. The judgment highlighted the importance of challenging adverse decisions through proper legal procedures before seeking remedies such as refunds. This detailed analysis of the judgment from the Appellate Tribunal CESTAT Ahmedabad provides a comprehensive understanding of the legal issues involved and the rationale behind the decision to reject the appellant's refund claim.
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