2004 (5) TMI 93 - AT - Customs

Summary

Issues:
1. Applicability of the decision in CCE, Kanpur v. Flock (India) Pvt. Ltd. to a refund application under Section 27 of the Customs Act, 1962.
2. Whether an application for refund is maintainable without challenging the assessment of Bill of Entry separately.
3. Interpretation of the difference between the language of Section 11B of the Central Excise Act and Section 27 of the Customs Act, 1962.

Analysis:
1. The appeal concerned the challenge against the order rejecting a refund application. The issue was whether the decision in Flock India, which states that a party cannot question an order by filing a refund claim if they did not appeal, applies to refund applications under the Customs Act. The appellant relied on a Tribunal decision that allowed refund claims even without challenging the assessment. However, the Revenue supported the Flock India decision. Various Tribunal and Supreme Court decisions were cited to argue for and against the applicability of Flock India.

2. Previous cases like Kopran Ltd. v. CC, New Delhi, and Priya Blue Ind. Ltd. v. CC, Ahmedabad, applied the Flock India ratio when the assessment of Bill of Entry was not challenged. The appellant argued that if there was no dispute between the parties and only a Bill of Entry assessment, a refund application under Section 27 would be maintainable without separately challenging the assessment. However, in the present case, since there was a dispute between the parties and the adjudication order was not appealed, the Flock India ratio was deemed applicable.

3. The arguments focused on the differences between the language of Section 11B of the Central Excise Act and Section 27 of the Customs Act. The appellant contended that challenging an adjudication order on a Bill of Entry merely through a refund application would not be permissible if contentions were raised during adjudication. The Tribunal held that in the present case, the refund application was rightly rejected applying the Flock India ratio. However, the Tribunal did not express a view on whether the Flock India ratio would not apply if it was a mere assessment of Bill of Entry without a dispute between the parties.

In conclusion, the appeal was dismissed, affirming the rejection of the refund application. The Tribunal clarified that the Flock India ratio was applied in this case due to the existence of a dispute between the parties and the unchallenged adjudication order. The judgment did not delve into the scenario where there was only a Bill of Entry assessment without a dispute.