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2018 (7) TMI 1014 - AT - CustomsRefund of excess Customs Duty paid - Commissioner (Appeals) set aside the refund sanctioning orders and directed the lower authority to serve the final assessment orders if any along with the attested copies of bills of entry finally assessed - Held that - Initially when the refund claim was sanctioned by the adjudicating authority the assessment was provisional. Therefore the refund itself at that stage was premature. Moreover in the department s appeal the Commissioner (Appeals) set aside the refund sanctioning order and directed the adjudicating authority to provide the final assessment order against which the appellant filed appeal before the Tribunal. The appellant was under obligation to file the appeal challenging the assessment order in order to make themselves eligible for the refund however it is undisputed that the appellant have not challenged the final assessment order accordingly the direction of the Tribunal in the case of ADANI WILMAR LTD. VERSUS COMMISSIONER OF CUSTOMS JAMNAGAR 2009 (2) TMI 576 - CESTAT AHMEDABAD was not complied with - Since the Tribunal s order had attained finality there was no option for the appellant except challenging the final assessment order but the appellant has failed to file any appeal. The appellant are not entitled for the refund - appeal dismissed - decided against appellant.
Issues Involved:
1. Entitlement of the appellant to a refund of excess duty paid. 2. Requirement to challenge the final assessment order to claim a refund. 3. Compliance with procedural directions from the Tribunal and Commissioner (Appeals). Issue-Wise Detailed Analysis: 1. Entitlement of the appellant to a refund of excess duty paid: The appellant imported various oils in bulk and paid duty on the ullage quantity, which was higher than the quantity received as per the shore tank reports. Consequently, the appellant claimed a refund of the excess duty paid. The initial refund claims were sanctioned by the Assistant Commissioner of Customs, but this decision was challenged by the customs department. The Commissioner (Appeals) set aside the refund sanctioning orders and directed the lower authority to serve the final assessment orders to the appellant. The Tribunal upheld this direction, emphasizing the need for the final assessment orders to be communicated to the appellant to enable them to challenge the same. 2. Requirement to challenge the final assessment order to claim a refund: The core issue revolves around whether the appellant needed to challenge the final assessment order to claim a refund. The Tribunal referenced the Supreme Court decision in Priya Blue Industries Ltd., which established that refund claims cannot be entertained without challenging the assessment orders. The Tribunal acknowledged that the appellant's refund claim was filed before the final assessment was communicated, and there was no dispute about the appellant's entitlement to the refund on merits. However, the Tribunal maintained that challenging the final assessment was a procedural necessity. 3. Compliance with procedural directions from the Tribunal and Commissioner (Appeals): The Tribunal noted that the Commissioner (Appeals) had directed the customs authorities to communicate the final assessment orders to the appellant, enabling them to challenge the same. The Tribunal's order emphasized that if the final assessment orders were not served, they should be served, and the appellant should challenge them before the appropriate forum. The Tribunal observed that the appellant did not comply with this procedural requirement, as they did not challenge the final assessment orders. Consequently, the Tribunal upheld the Commissioner (Appeals)'s order and dismissed the appellant's appeal due to non-compliance with the procedural directions. Conclusion: The Tribunal concluded that the appellant was not entitled to the refund due to their failure to challenge the final assessment order as directed. The appeal was dismissed, and the impugned order was upheld. The Tribunal's decision was pronounced in the open court on 07.06.2018.
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