2019 (1) TMI 730 - AT - Customs

Maintainability of Refund claim - assessment order not challenged - case of appellant is that the duty was paid under mistake of law - Section 27 of the Customs Act, 1962 - Held that - The refund claim is not maintainable till the order of assessment is modified in view of the decision of the Apex Court in case of Priya Blue 2004 (9) TMI 105 - SUPREME COURT OF INDIA . However exercising the extraordinary jurisdiction under Article 226 of Constitution of India, High Court has directed for amendment of the assessment order. Tribunal being the creation of statue do not have such extraordinary jurisdiction as can be exercised by the High Court. In fact the decision goes against the Appellant s as the ratio decidendi of the same is that refund claim is not maintainable without modification of the assessment order. Thus the clear position which emerges from all the decisions of Hon ble Supreme Court and High Courts is that the refund claim under section 27 is not maintainable unless the order of assessment is modified in the appellate proceedings. Appeal dismissed - decided against appellant.

Issues Involved:

1. Whether the appellants could claim a refund without challenging the assessment order.
2. Applicability of exemption under Notification No. 21/2002-Cus dated 01.03.2002.
3. Relevance of previous case laws cited by both appellants and respondents.
4. Procedural requirements for claiming a refund under Section 27 of the Customs Act, 1962.

Issue-Wise Detailed Analysis:

1. Whether the appellants could claim a refund without challenging the assessment order:

The Tribunal held that the refund claim under Section 27 of the Customs Act, 1962, is not maintainable unless the order of assessment is modified in appellate proceedings. The Tribunal relied on the Supreme Court's judgments in Flock India and Priya Blue Industries, which established that an assessment order must be challenged and modified before a refund can be claimed. The Tribunal emphasized that the finality of an assessment order cannot be questioned in a refund proceeding, as this would render the statutory provisions for appeals and adjudication redundant.

2. Applicability of exemption under Notification No. 21/2002-Cus dated 01.03.2002:

The appellants argued that they paid the duty under a mistake of law, as the imported goods were exempted under Notification No. 21/2002-Cus. They contended that the duty was paid inadvertently without claiming the exemption. However, the Tribunal noted that the appellants did not challenge the original assessment orders, which had become final. According to the Tribunal, the exemption could not be claimed retrospectively through a refund application without first amending the assessment orders.

3. Relevance of previous case laws cited by both appellants and respondents:

The appellants cited several decisions where refunds were allowed in similar situations, including cases like Kent RO Systems Pvt Ltd and Lalit Kumar. However, the Tribunal distinguished these cases, noting that the facts were not identical to the present case or that the jurisdictional high courts had different interpretations. The Tribunal also emphasized that decisions of the Supreme Court and jurisdictional High Courts take precedence over Tribunal decisions.

The respondents cited cases like Flock India, Priya Blue Industries, and Maharashtra Cylinders Pvt Ltd, which supported the view that a refund claim is not maintainable without challenging the assessment order. The Tribunal found these cases directly applicable and binding.

4. Procedural requirements for claiming a refund under Section 27 of the Customs Act, 1962:

The Tribunal highlighted that Section 27 requires a proper challenge to the assessment order before a refund can be processed. The appellants had not filed any application for amending the Bill of Entry under Section 149 before seeking a refund. The Tribunal referenced the Supreme Court's decision in Mafatlal Industries, which stated that a refund claim based on a mistake of law must adhere to the statutory provisions and cannot be entertained if the original assessment order remains unchallenged.

Conclusion:

The Tribunal dismissed the appeal, holding that the refund claim was not maintainable without first challenging and modifying the assessment orders. The Tribunal's decision was based on the clear legal position established by the Supreme Court and High Courts, emphasizing the finality and sanctity of assessment orders unless duly challenged in appellate proceedings.

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