2017 (1) TMI 524 - AT - Customs

Refund claim - benefit of exemption N/N. 17/2001 dt. 1.3.2001 - payment of duty under protest - natural justice - Held that - the appellant right from filing of bill of entry have protested the denial of exemption notification and accordingly paid the duty under protest. However, the assessing authority has not passed any speaking order in connection with assessment of bill of entry - once the appellant has protested the matter the assessing officer is duty bound to pass a speaking order on the merit of the issue therefore before deciding the refund claim the assessing officer was supposed to pass a speaking order on the assessment of bill of entry - Since no speaking order was passed the matter of refund in the present case cannot be concluded. The adjudicating authority must pass a speaking order thereafter process the refund application of the appellant - matter remanded to the original adjudicating authority with a direction to pass a speaking order on the assessment of bill of entry, accordingly the refund matter should be reprocessed. Appeal allowed by way of refund.

Summary

Issues:
1. Eligibility of exemption notification for imported machines.
2. Rejection of refund claim for the second machine due to non-filing of appeal against assessed bill of entry.

Analysis:
1. The case involved the import of two machines with exemption claimed under Notification No. 17/2001. The first machine's exemption was initially denied but later allowed by the Tribunal and upheld by the Supreme Court. The appellant filed a refund claim for the first machine, which was sanctioned. However, for the second machine, despite paying duty under protest and requesting an assessment order, the refund claim was rejected on the basis of not appealing against the assessed bill of entry, citing legal precedents. The appellant contended that since the issue had already been settled by the Supreme Court in a similar case, there was no need to file a new appeal. The appellant argued that the duty paid under protest obligated the assessing authority to pass a speaking order on the assessment, which was not done. The appellant provided various judgments in support of their argument.

2. The Revenue maintained that since the bill of entry was finally assessed, the only recourse for the appellant was to challenge the assessment through an appeal. Refund was deemed not applicable unless the assessment was challenged. The Revenue cited legal precedents to support their stance. The Tribunal considered both parties' submissions and noted that the assessing authority did not pass a speaking order despite the appellant's protest and request for assessment. The Tribunal held that the assessing officer should have passed a speaking order before deciding on the refund claim. Citing a previous Tribunal decision, the Tribunal set aside the impugned order and remanded the matter to the adjudicating authority to pass a speaking order on the assessment of the bill of entry and reprocess the refund claim. The Tribunal directed the adjudicating authority to dispose of the matter within three months, ensuring the appellant's right to a personal hearing and submission of additional documents.

This detailed analysis of the judgment highlights the issues, arguments presented by both parties, legal precedents cited, and the Tribunal's decision and reasoning, providing a comprehensive overview of the case.