2016 (8) TMI 27 - AT - Customs

Refund of duty in excess, under protest - The claim had been rejected by the Assistant Commissioner (Refund) on the ground that the importer had not challenged the assessment, an essential pre-requisite laid down in the decision of the Hon ble Supreme Court in Priya Blue Industries Ltd v. Commissioner of Customs (Prev.) 2004 (9) TMI 105 - SUPREME COURT OF INDIA . - Held that - It is seen that the refund application made on 9th April 2012 was returned as premature . At that time, after holding the claim for 14 months, the original authority did not consider the application to be violative of the decision of the Hon ble Supreme Court in re Priya Blue Industries (supra). That it was raised upon re-submission of the application after the decision of the Tribunal upholding the dropping of proceedings by Commissioner of Customs throws light on the motive for doing so. By not raising that principal objection at the first stage, the original authority forfeited the right to do so when the alteration in circumstances favoured the importer s claim. The dispute on taxability stands settled in favour of the importer for the period from 2001 to 2005. That resolution of the dispute is equally applicable to subsequent imports. Refund allowed - Decided against the revenue.

Summary

Issues:
Challenge of rejection of claim for refund of duty, requirement of challenging the assessment, rejection of refund claims, violation of natural justice, issuance of speaking order, exclusion from the bar of limitation for filing an appeal, contradiction in the decision of the first appellate authority, classification of parts of electronic hardware, levy of duty on parts as finished products, refund claim categorization as premature, challenge to assessment by Revenue, assessment of subsequent imports, expectation of settlement by Commissioner (Appeals), payment of enhanced duty under protest, adherence to the condition laid down by the Hon'ble Supreme Court, refund application categorization as premature, settlement of the taxability dispute, unjust enrichment bar.

Analysis:

The judgment dealt with the challenge of rejection of a claim for refund of duty paid in excess by an importer against 22 imports. The Assistant Commissioner rejected the claim citing the importer's failure to challenge the assessment, based on a decision of the Hon'ble Supreme Court. The first appellate authority held that the rejection was improper, emphasizing the requirement of a speaking order when revising classification and the need for challenging the assessment. The Commissioner set aside the rejection, highlighting the violation of natural justice in not issuing a show-cause notice and directed the issuance of speaking orders for future refund claims.

The Revenue appealed the order-in-appeal, arguing that no request for a speaking order was made by the importer and no challenge to the assessment was mounted. They contended that the first appellate authority contradicted itself by accepting the protest as a justification to set aside the lower authority's order. The judgment analyzed the genesis of the dispute, tracing back to the classification of parts of electronic hardware and the subsequent levy of duty on finished products by Revenue. It highlighted the tangled nature of the proceedings and the importer's payment of enhanced duty under protest.

The judgment emphasized that the assessment was under challenge, whether by Revenue or the importer, and the lack of separate appeals for subsequent imports did not change the appellate process's factual matrix. It concluded that the challenge to the assessment of parts had failed, making the levy of enhanced duty unlawful. The judgment dismissed the Revenue's appeal, stating that the settled status of the assessment did not warrant the issuance of a speaking order at that stage and directed the original authority to dispose of the refund claim.

In summary, the judgment addressed various issues such as the requirement of challenging assessments, violation of natural justice, the need for speaking orders, and the settlement of taxability disputes, ultimately upholding the decision to set aside the rejection of refund claims and directing the disposal of the claim by the original authority.