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2018 (5) TMI 1243 - AT - CustomsRefund claim - rejected on the ground that the appellant cannot claim the refund directly without challenging the assessment order (bill of entry), in view of the Apex Court decision in the case of Priya Blue Industries ltd. vs. Commissioner 2004 (9) TMI 105 - SUPREME COURT OF INDIA ? - Held that - in the present case, there is no lis between the Department and the appellant in claiming the benefit of N/N. 52/2011 - the impugned order denying the refund on the ground that the assessee has not challenged the assessment order which is final is not sustainable in law. The authorities below rejected the refund claim relying upon the decision of Priya Blue and have failed to distinguish the issue involved in the Priya Blue and Flock (India) case and in the present case - In an identical issue, the Division Bench of this Tribunal in the case of Bennet Colman and Co. 2008 (7) TMI 204 - CESTAT Bangalore has considered both the decisions of the apex court in the case of Priya Blue and had distinguished the same and has relied upon the decision of the apex court in the case of Shree Hari Chemicals vs. UOI 2005 (12) TMI 95 - SUPREME COURT OF INDIA , where it was held that refund cannot be denied on ground of non-challenge to assessment order. Case remanded back to the original authority to consider the refund claim after considering the law declared by the Tribunal and the High Court - appeal allowed by way of remand.
Issues Involved:
1. Whether the appellant can claim a refund without challenging the assessment order. 2. The applicability of the Apex Court decisions in Priya Blue Industries Ltd. and Flock India Pvt. Ltd. to the present case. 3. The interpretation and impact of Notification No. 52/2011-Cus. and Section 27 of the Customs Act, 1962. 4. The relevance of various judicial precedents cited by both parties. Detailed Analysis: 1. Claiming Refund Without Challenging the Assessment Order: The appellant's primary contention was that the refund claim was wrongly rejected on the grounds that the assessment order was not challenged. The Assistant Commissioner and Commissioner (Appeals) had both rejected the refund claim based on the Apex Court decision in Priya Blue Industries Ltd., which mandates that an assessment order must be challenged before claiming a refund. However, the appellant argued that there was no lis (dispute) between them and the Department regarding the benefit of Notification No. 52/2011, which was unconditional. The Tribunal, upon remand from the High Court, found that there was no Order-in-Original passed by the Assistant Commissioner, and thus, the basis for rejecting the refund claim was flawed. 2. Applicability of Priya Blue Industries Ltd. and Flock India Pvt. Ltd.: The Tribunal examined whether the decisions in Priya Blue Industries Ltd. and Flock India Pvt. Ltd. were applicable to the present case. The appellant argued that these cases involved scenarios where an assessment order was passed and not challenged, which was not the situation in the present case. The Tribunal noted that in cases where there is no assessment order on dispute or contest, the judgments in Priya Blue and Flock India would not apply. This position was supported by the Delhi High Court's decision in Aman Medical Products Ltd., which distinguished the facts of the present case from those in Priya Blue and Flock India. 3. Interpretation and Impact of Notification No. 52/2011-Cus. and Section 27 of the Customs Act, 1962: The Tribunal acknowledged that Notification No. 52/2011-Cus. provided an unconditional exemption, and the appellant's claim for a refund was based on this notification. The Tribunal also considered the amendments to Section 27 of the Customs Act, 1962, which removed the conditionality of duty being paid under an order of assessment for claiming a refund. The Tribunal referred to the Delhi High Court's decision in Micromax Informatics Ltd., which clarified that post-amendment, a refund claim could be entertained even if no appeal was filed against the assessment order. 4. Relevance of Judicial Precedents: Both parties cited various judicial precedents to support their arguments. The appellant relied on decisions such as Bennet & Colman Co. Ltd., Aman Medical Products Ltd., and Micromax Informatics Ltd., which supported the view that a refund could be claimed without challenging the assessment order. The respondent, on the other hand, cited decisions like Mafatlal Industries Ltd. and CEAT Ltd., which emphasized the necessity of challenging the assessment order. The Tribunal, after considering these precedents, found that the decisions supporting the appellant's position were more relevant to the facts of the present case. Conclusion: The Tribunal concluded that the impugned order denying the refund on the ground that the assessment order was not challenged was not sustainable in law. The Tribunal set aside the impugned order and remanded the case back to the original authority to consider the refund claim in light of the judicial precedents cited. The appeal was allowed by way of remand.
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