2004 (5) TMI 91 - AT - Customs

Summary

Issues:
1. Applicability of Supreme Court decision in CCE, Kanpur v. Flock (India) Pvt. Ltd. to refund applications under Section 27 of the Customs Act, 1962.
2. Whether the decision in Flock India applies when there is a Lis between the parties in a refund application.
3. Impact of mere assessment on the Bill of Entry without a Lis on the application of the Flock India decision.

Analysis:
1. The case involved determining whether the Supreme Court decision in CCE, Kanpur v. Flock (India) Pvt. Ltd. under Rule 11 of erstwhile Central Excise Rules is applicable to refund applications under Section 27 of the Customs Act, 1962. The Tribunal considered a similar issue in a previous order and held that the application for refund should be rejected by applying the ratio of the Flock India decision when there is a Lis between the parties. However, no view was expressed on the contention regarding mere assessment of Bill of Entry without a Lis involved.

2. The appellant argued that when contentions are raised by the assessee and an adjudication order is issued, it is not open for the assessee to challenge the adjudication order on the Bill of Entry simply by filing a refund application. The Tribunal noted that in cases where there is a Lis between the parties, the application for refund should be rejected applying the decision in Flock India. In the present case, similar contentions were raised, and it was submitted that there is a Lis between the parties, leading to the dismissal of the appeal following a previous order.

3. The Tribunal clarified that it was not expressing any view on the appellant's contention that if it is only a mere assessment of the Bill of Entry without a Lis, the ratio of the Flock India decision would not be applicable. The appeal was ultimately dismissed based on the above considerations, emphasizing the importance of the presence or absence of a Lis between the parties in determining the applicability of the Flock India decision to refund applications under Section 27 of the Customs Act, 1962.