2008 (4) TMI 147 - AT - Customs

Refund claim rejected on the ground that the respondent did not challenge the assessment by way of appeal - refund of the excess duty on the ground that by mistake they could not claim the benefit of Not. No.6/2002 - since the B/E had been assessed finally the proper course would be to approach the appellate authority against assessment order - refund claim without preferring appeal was not maintainable revenue s appeal allowed

Summary

Issues:
1. Maintainability of the refund claim without challenging the assessment by way of appeal.
2. Interpretation of the term 'in pursuance of an Order of Assessment' in the context of claiming a refund.
3. Whether a formal assessment order is a prerequisite for filing a refund claim.

Issue 1: Maintainability of the refund claim without challenging the assessment by way of appeal:

The case involved a dispute where the respondent filed bills of entry for clearance of goods and later sought a refund of excess duty paid due to a missed exemption benefit. The Deputy Commissioner rejected the refund claim stating that without challenging the assessment by appeal, the refund claim was not maintainable. The Commissioner (Appeals) disagreed, allowing the refund claim to be filed directly against the assessment order. The Tribunal referred to previous judgments emphasizing that challenging the assessment through appeal is necessary before filing a refund claim to maintain the integrity of the adjudication process and avoid redundancy in the appeal mechanism. The Tribunal held that without challenging the assessment by way of appeal, the refund claim was not maintainable, ultimately setting aside the Commissioner's order and allowing the appeal by the Revenue.

Issue 2: Interpretation of the term 'in pursuance of an Order of Assessment' in the context of claiming a refund:

The Tribunal examined the interpretation of the term 'in pursuance of an Order of Assessment' concerning the eligibility to claim a refund. It was argued that a refund claim could be made without challenging the assessment in an appeal, and the correctness of the assessment order could be reviewed during the refund claim process. However, the Tribunal rejected this argument, emphasizing that once an assessment order is passed, duty is payable as per that order until modified through appeal. The Tribunal clarified that the words 'in pursuance of an Order of Assessment' only determine who can claim a refund, not whether an appeal is required before filing a refund claim.

Issue 3: Whether a formal assessment order is a prerequisite for filing a refund claim:

The respondent contended that since no formal assessment order was passed in their case, they were not required to appeal against the assessment of duty before claiming a refund. However, the Tribunal disagreed, stating that even if a formal speaking order assessing duty was not issued, the assessment was deemed to have occurred when duty was paid based on the bill of entry. The Tribunal highlighted that failure to contest the assessment at the time of payment does not negate the existence of an assessment order, making it necessary to appeal the assessment before seeking a refund. The Tribunal concluded that the absence of a formal assessment order did not exempt the respondent from appealing the assessment before claiming a refund.

In conclusion, the Tribunal ruled in favor of the Revenue, setting aside the Commissioner's decision and allowing the appeal. The judgment reiterated the importance of challenging assessments through appeal before filing refund claims to maintain the integrity of the adjudication process and prevent uncertainty in the levy and collection of duties.