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2015 (4) TMI 990 - HC - CustomsRefund claim - Reassessment - Whether re-assessment can be permitted at the refund stage when the order of assessment is final and not appealed against or not - Held that - New notification is pressed into service, at a belated stage, for claiming refund of the excess duty paid and without challenging the order of assessment. The facts in the present case are clearly distinguishable as we find that a new plea is taken at the time of refund by placing reliance on Notification No.18/2000-Cus. The assessment made in the Bill of entry is totally a different claim from the one made in the refund application. We, therefore, have no hesitation to hold that the 1st respondent, having not challenged the order of assessment, cannot at a belated stage, claim refund by pressing into service another Notification and, therefore, the rejection of the refund claim by the Assessing Officer and rightly held by the Commissioner (Appeals) is clearly sustainable. - decision of the Supreme Court in Flock (India) Pvt. Ltd. case 2000 (8) TMI 88 - SUPREME COURT OF INDIA and Priya Blue Industries case (2004 (9) TMI 105 - SUPREME COURT OF INDIA) are squarely applicable to the facts of the present case. - Decided in favor of revenue.
Issues Involved:
1. Whether re-assessment can be permitted at the refund stage when the order of assessment is final and not appealed against. 2. Applicability of Notification No.94/96-Cus and Notification No.18/2000-Cus. 3. The legitimacy of the refund claim without challenging the original assessment order. 4. The distinction between imported and re-imported goods concerning the levy of Special Additional Duty (SAD). Detailed Analysis: 1. Whether re-assessment can be permitted at the refund stage when the order of assessment is final and not appealed against: The core issue revolves around whether a re-assessment can be permitted at the refund stage when the original assessment order has not been appealed against. The court emphasized that once an order of assessment is passed, the duty is payable as per that order unless it is reviewed or modified in an appeal. The Supreme Court's decisions in Priya Blue Industries Ltd. and Flock (India) Pvt. Ltd. were cited to reinforce that a refund claim cannot be entertained without first challenging the assessment order. The court concluded that the refund claim is not an appeal proceeding, and the officer considering the refund cannot sit in appeal over an assessment made by a competent officer. 2. Applicability of Notification No.94/96-Cus and Notification No.18/2000-Cus: The first respondent claimed the benefit of Notification No.94/96-Cus for a refund of SAD on re-importation of goods. The Deputy Commissioner of Customs and the Commissioner (Appeals) both held that Notification No.94/96-Cus was applicable, and not Notification No.18/2000-Cus. The court clarified that Notification No.94/96-Cus provided relief for re-imported goods but did not exempt them from SAD. The Commissioner (Appeals) further noted that the goods were exempted only from customs duty and not from additional duty equivalent to excise duty. The court upheld this interpretation, stating that the first respondent could not claim the benefit of Notification No.18/2000-Cus at the refund stage without having claimed it during the original assessment. 3. The legitimacy of the refund claim without challenging the original assessment order: The court reiterated that the refund claim could not be maintained without challenging the original assessment order. The first respondent's failure to appeal against the assessment order meant that the duty assessed was final and binding. The court relied on the Supreme Court's ruling in Priya Blue Industries Ltd., which established that a refund claim is not an appeal proceeding and the officer considering the refund cannot review or modify an assessment order. Consequently, the court found that the refund claim was not maintainable as the assessment order had not been challenged. 4. The distinction between imported and re-imported goods concerning the levy of Special Additional Duty (SAD): The first respondent contended that SAD was applicable only to originally imported goods and not to re-imported goods. However, the Commissioner (Appeals) and the court rejected this argument, stating that Section 3A of the Customs Tariff Act, 1975, does not distinguish between imported and re-imported goods. The court affirmed that both types of goods are subject to the same duties under the Customs Act, 1962. The court held that the first respondent's contention was not legally tenable and upheld the levy of SAD on re-imported goods. Conclusion: The court concluded that the first respondent's refund claim was not maintainable as the original assessment order was not challenged. The court upheld the applicability of Notification No.94/96-Cus and rejected the applicability of Notification No.18/2000-Cus at the refund stage. The court also affirmed that SAD applies to both imported and re-imported goods. Consequently, the appeal filed by the appellant/Revenue was allowed, and the order of the Tribunal was set aside. The court ruled in favor of the appellant/Revenue and against the first respondent/assessee.
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