2008 (2) TMI 188 - AT - Central Excise

Duty liability admitted by assessee & paid which was confirmed by Assistant Commissioner & Comm.. (A) - Meanwhile the appellant filed a refund claim with the Assistant Commissioner seeking refund of duty already paid by him, as according to them no duty was liable to be paid held that, once the duty against him has been upheld by the Commissioner (Appeals) vide his earlier order, unless the Commissioner (Appeals) order is set aside the appellant cannot file claim for refund of duty

Summary

Issues: Appeal against rejection of refund claim of duty amounting to Rs. 7,19,921/- paid by the appellant in respect of goods allegedly cleared without payment of appropriate duty.

Analysis:

1. The appellant filed an appeal against the rejection of a refund claim of duty amounting to Rs. 7,19,921/- paid by them for goods allegedly cleared without payment of appropriate duty. The charge was that they cleared the goods claiming SSI exemption, which was not applicable as their total clearance exceeded Rs. 3 crores. The Assistant Commissioner upheld the duty liability and imposed a penalty of Rs. 50,000/-. The Commissioner (Appeals) upheld the duty liability but reduced the penalty to Rs. 40,000/-. The appellant sought a refund of the duty paid, arguing that certain clearances made under the brand name of their customers should not be included in the total clearance. However, the refund claim was rejected on the grounds of prematurity, as the duty liability had been confirmed by the Commissioner (Appeals) in an earlier order.

2. The appellant contended that duty was not payable as the clearance of branded goods should not have been included in the calculation of total clearance. This argument was presented before both the Assistant Commissioner and Commissioner (Appeals) but was not considered. The appellant believed that the order should have first addressed the merits of whether duty should have been paid or not, and only then should the refund claim have been considered for rejection, if necessary.

3. The tribunal considered the submissions and noted that the appellant had initially admitted the duty liability, which was confirmed by both the Assistant Commissioner and Commissioner (Appeals) in earlier orders. As the duty liability upheld by the Commissioner (Appeals) had not been set aside, the appellants were not entitled to claim a refund of the duty they believed was wrongly paid. The tribunal emphasized that the only recourse for the appellant was to appeal the earlier order of the Commissioner (Appeals) with the Tribunal for a decision on merits. Since this step was not taken, the plea for a refund could not be entertained, and the appeal was dismissed for lacking merit.