2008 (2) TMI 222 - AT - Customs

Refund of excess duty paid - case of the appellant is that the excess duty was charged in respect of previous consignments on account of non-feeding of the amended notification in the EDI system - Commissioner is justified in holding that where the assessment order is not challenged by the assessee on merit, he is not entitled for refund - no infirmity in the Commissioner order to warrant interference by this Tribunal

Summary

Issues:
1. Refund claim based on reduced duty rate.
2. Entitlement to refund without challenging assessment order.
3. Applicability of legal precedents in refund claims.

Issue 1: Refund claim based on reduced duty rate:
The appellant filed two bills of entry for raw asbestos, paying duty at 20% ad valorem initially and later at 15% ad valorem due to a rate reduction under notification No. 68/04-Cus. The appellant sought a refund of Rs. 27,080 for the excess duty paid on previous consignments, attributing the error to non-feeding of the amended notification in the system. The Assistant Commissioner allowed the refund claim, but the Commissioner set it aside, citing the Apex Court's ruling in Priya Blue Industries case.

Issue 2: Entitlement to refund without challenging assessment order:
The appellant argued that the decision in Priya Blue Industries was not applicable, referencing the Karnataka Power Corporation Ltd. case instead. The Revenue, however, relied on the Flock (India) case and Priya Blue Industries, asserting that a refund claim is not maintainable if the assessment order is not challenged. The Tribunal analyzed the legal principles from both cases, emphasizing that a claim for refund cannot be made without challenging the assessment order.

Issue 3: Applicability of legal precedents in refund claims:
The Tribunal examined the judgments in Flock (India) and Priya Blue Industries, highlighting the importance of challenging assessment orders for refund claims. The Tribunal differentiated the Karnataka Power Corporation case, clarifying that it did not establish a new legal principle and could not be cited as a precedent. Ultimately, the Tribunal dismissed the appeal, affirming the Commissioner's decision to reject the refund claim based on established legal principles from Flock (India) and Priya Blue Industries.

In conclusion, the Tribunal upheld the Commissioner's decision, emphasizing the necessity of challenging assessment orders for refund claims and rejecting the appellant's argument based on legal precedents.