2009 (2) TMI 20 - HC - Customs

Speaking order appellant requested AO to pass a speaking order giving reasons for enhancing the value of imported goods - but no speaking order has been passed - in the meantime, the appellant claimed refund of the duty paid on the enhanced value - the fact that a speaking order is not passed would not entitle the importer to claim refund of duty paid as per the assessment order - authorities below are justified in rejecting the refund claim - no merit in this assessee s appeal

Summary

Issues:
1. Appeal against CESTAT order dated 15/2/2008.
2. Questions of law arising from the tribunal's order.
3. Entitlement to claim refund of duty paid on enhanced value of imported goods.
4. Validity of assessment order without a speaking order.
5. Appealability of assessment order in absence of a speaking order.
6. Applicability of precedents in similar cases.
7. Impact of legislative amendment on passing a speaking order.
8. Relevance of specific court decisions on appeal and refund claims.

Analysis:
1. The appellant imported goods in 2003, assessed by loading invoice value without a speaking order. Paid duty without protest and later requested a speaking order, which was not issued. Filed a refund claim, rejected due to pending assessment order.
2. Tribunal remanded the matter for fresh adjudication based on TELCO case. Adjudicating authority rejected refund claim citing Apex Court decisions.
3. Appellant's appeal dismissed by Commissioner (A) and CESTAT, leading to the current appeal.
4. The central issue is whether an importer can claim refund for duty paid on enhanced value when no speaking order is passed despite requests.
5. The court held that failure to pass a speaking order does not invalidate the assessment order, thus refund claim is not justified.
6. Appellant's argument that an appealable speaking order is necessary for appeal lacks merit; assessment order is appealable even without a speaking order.
7. Precedents cited by the appellant were deemed irrelevant to the case, as they involved different circumstances regarding reclassification and refund.
8. Legislative amendment mandating speaking orders does not entitle automatic refunds based on absence of such orders.
9. The court dismissed the appeal, upholding the rejection of the refund claim based on established legal principles and precedents cited.

By analyzing the issues raised in the appeal against the CESTAT order and the questions of law related to assessment orders, speaking orders, and refund claims, the High Court concluded that the appellant was not entitled to a refund based on the absence of a speaking order. The court emphasized the appealability of an assessment order even without a speaking order and highlighted the significance of established legal principles and precedents in such cases.