2009 (6) TMI 4 - HC - Customs

Refund of customs duty (CVD) paid on Exempted Goods notification no. 10/2003 CE as amended by notification no. 43/2006 - The Petitioners realizing their mistake, that no additional duty is payable on the import of bicycle parts covered under Chapter Heading 87149990 of the Central Excise Tariff Act and the notifications, filed five refund claims before Respondent No. 3 and 8. The Petitioners did not take the credit of the said additional duty of customs paid on the imported goods. According to Petitioners the incidence of duty of which the refund claimed by the Petitioner is not passed on to any other person and is borne by the Petitioners HC ordered the department to amend the assessment order and process the refund application as per law.

Summary

Issues:
1. Assessment of imported goods without extending exemption benefits under notifications.
2. Rejection of refund claim for additional duty paid.
3. Exercise of extraordinary jurisdiction by the court in the absence of challenging the original assessment order.

Analysis:

Issue 1:
The Petitioners imported goods exempt from Central Excise duty under specific notifications. However, some bills of entry were assessed without extending the exemption benefits. The Petitioners contended that they inadvertently did not claim the exemption for these bills. Despite importing similar goods before and after, the benefit of notifications was always extended. The Petitioners filed refund claims realizing their error, stating the duty incidence was not passed on to others.

Issue 2:
After a personal hearing and submission of a certificate from their C.A., the refund claim was rejected by Respondent No. 3. The rejection was based on the Petitioners not challenging the final assessment order. The subsequent appeal was dismissed as the Petitioners did not challenge the assessment orders within the prescribed time but sought a refund instead.

Issue 3:
The court considered whether, in the absence of challenging the original assessment order through statutory appeal, it should exercise its extraordinary jurisdiction. The court noted that the mere existence of a statutory remedy does not bar the court from issuing a writ if there has been a breach of fundamental justice. The court referred to previous judgments and held that the circumstances of each case determine the exercise of extraordinary jurisdiction.

The court found that the Petitioners were entitled to the benefit of the exemption notification, which the Assessing Officer should have noted. The court emphasized that a statutory notification has the force of law and must be considered in assessments. The court concluded that denying the benefit due to an inadvertent error would result in manifest injustice and erroneous assessment. Therefore, the court exercised its extraordinary jurisdiction to amend the original assessment order and allowed the Petition in part, with the option for the Petitioner to file a refund application after the order modification.