2017 (4) TMI 580 - AT - Customs

Refund claim without challenging the assessed bill of entry - whether the appellants are eligible to refund of cess paid against 48 assessed shipping bills during the period April 2005 to February 2006 for export of tobacco and tobacco products? - Held that - similar issue decided in the case of PRIYA BLUE INDUSTRIES LTD. Versus COMMISSIONER OF CUSTOMS (PREVENTIVE) 2004 (9) TMI 105 - SUPREME COURT OF INDIA , where also the assesse imported ship for breaking purpose and filed bill of entry accordigly, and after assessment the of duty was paid accordingly, which they sought later as refund without challenging the assessed bill of entry. It was decided in the case that without challenging the assessment order, the claim for refund cannot be considered - impugned order rejected - appeal dismissed - decided against assessee.

Summary

Issues:
- Eligibility for refund of cess paid on export of tobacco products
- Requirement to challenge assessed shipping bills for refund claim
- Principles of unjust enrichment in refund cases

Analysis:
1. Eligibility for refund of cess paid on export of tobacco products:
The appellant filed a refund claim for export duty paid on tobacco products, claiming they had paid cess erroneously. The Tobacco Board confirmed no cess was applicable for export of such products. The appellant argued that the refund should be granted despite not challenging the assessment of shipping bills, citing a High Court judgment. However, the Revenue contended that without challenging the assessment, the refund claim cannot be considered. The Tribunal referred to a Supreme Court case emphasizing that a claim for refund cannot be made without challenging the assessment order. Ultimately, the Tribunal upheld the Revenue's decision, stating that the appellant did not challenge the assessed shipping bills, making them ineligible for the refund.

2. Requirement to challenge assessed shipping bills for refund claim:
The appellant failed to challenge the assessment of shipping bills, a crucial requirement for claiming a refund. The Revenue argued that the burden of proof regarding passing on the refund amount to others was not met by the appellant. The Tribunal highlighted the importance of challenging assessment orders before seeking a refund, as established in legal precedents. The appellant's reliance on a High Court judgment was deemed inapplicable to the present case due to differing circumstances. Ultimately, the Tribunal rejected the appeal, emphasizing the necessity of challenging assessed bills for refund claims.

3. Principles of unjust enrichment in refund cases:
The Revenue raised the issue of unjust enrichment, emphasizing that the burden of proving non-passing on of the refund amount rested with the appellant. The Tribunal considered the principles of unjust enrichment crucial in refund cases, citing Supreme Court judgments. The appellant's submission of a Chartered Accountant's certificate without supporting evidence was deemed insufficient to prove non-passing on of the refund amount. The Tribunal upheld the Revenue's argument, underscoring the importance of demonstrating non-passing on of refund amounts to others. The appeal was rejected based on these principles.

In conclusion, the Tribunal upheld the Revenue's decision, emphasizing the necessity of challenging assessed shipping bills and proving non-passing on of refund amounts in eligibility for refunds, in line with legal precedents and principles of unjust enrichment.