2008 (2) TMI 118 - AT - Customs

Refund filed on observing that Not. 43/02 exempts customs duty & additional duty on import of aluminium ingots - findings of the adjudicating authority that, the assessee having not challenged the assessment before the appropriate authority are prevented from claiming refund, is incorrect refund claim was rejected on ground not mentioned in SCN violation of natural justice - matter is remanded to reconsider the issue afresh after granting an opportunity of personal hearing to assessee

Summary

Issues:
1. Whether the refund claim filed by the respondents was rightly rejected by the adjudicating authority.
2. Whether the Commissioner (Appeals) erred in permitting the refund application without challenging the assessment of bills of entry.
3. Whether the adjudicating authority was correct in law to invoke a ground not intimated to the respondents for rejection of the refund claims.

Analysis:

Issue 1:
The respondents imported consignments of aluminium ingots and later realized they had not availed the benefit of an exemption notification. They filed refund claims, which were initially rejected by the adjudicating authority based on certain grounds mentioned in the show cause notice. The authority held that the refund claims were not maintainable as the assessment order had not been challenged or modified. The Commissioner (Appeals) set aside this order, directing a re-examination of the claim on merits and fresh orders to be passed.

Issue 2:
The Senior Departmental Representative (SDR) contended that the Commissioner (Appeals) erred in allowing the refund application without challenging the assessment of bills of entry. The SDR argued that once there is no challenge to the assessment, the route of a refund claim cannot be taken. Citing a Supreme Court judgment, the SDR claimed that the issue was in favor of the revenue. However, the Counsel for the respondents argued that the show cause notice only mentioned specific grounds for rejection, and the adjudicating authority went beyond these grounds in rejecting the claim. The Counsel relied on case laws to support the contention that the authority cannot exceed the grounds in the show cause notice.

Issue 3:
The main question was whether the adjudicating authority was correct in law to invoke a ground not intimated to the respondents for rejection of the refund claims. The show cause notice clearly outlined the reasons for rejecting the claims, and the respondents addressed these grounds. However, the authority rejected the claims on different grounds not mentioned in the notice. The Tribunal found that the authority's decision to reject the claims based on unnotified grounds was incorrect and against the principles of natural justice. The Tribunal set aside both the original order and the Commissioner (Appeals) decision, remanding the matter back to the adjudicating authority for a fresh consideration after granting the respondents a personal hearing.

In conclusion, the Tribunal found that the adjudicating authority's decision to reject the refund claims based on unnotified grounds was incorrect and against the principles of natural justice. The matter was remanded back to the adjudicating authority for a fresh consideration, allowing the respondents to present any points before the authority.