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2024 (6) TMI 297 - AT - Central Excise100% EOU - refund of excess duty alongwith interest - additional amount of duty was deposited as per the demand raised by the department which was found as not correct - Payment of additional duty under protest or not - Rejection of refund claim on the ground that appellant have not challenged the letter / communication - HELD THAT - The factum, payment of duty of interest either on the basis of the communication dated 30.07.2009 received from the Department and on the basis of self assessment is not in dispute. It is also not in dispute that the said assessment which has been made resulting in payment of this duty has never been challenged before any Appellate Authority and the said order of assessment has been set aside. In view of the above decision of Hon ble Apex Court in the case of ITC Ltd 2019 (9) TMI 802 - SUPREME COURT provisions of refund contained in the Section 27 of Customs Act and Section 11B of Central Excise Act are only executionary in nature and cannot result in setting aside or modifying the assessment orders (both on direction of the Department or self assessment). In these proceedings, if these assessment orders are to be modified then resort should have been taken to the appellate proceedings as provided in law - The order of Appellate Authority to the extent whereby he has held that appellant having not challenged this letter dated 30th July, 2009 by way of appeal cannot claim refund of duties paid by way of proceeding under Section 27 of Custom Act,1962 or Section 11B of Central Excise Act, 1944. In case of Mafatlal Industries 1996 (12) TMI 50 - SUPREME COURT it was held that ' We respectfully agree with the above propositions and hold that the said principles apply with equal force in the case of both the Central Excises and Salt Act and the Customs Act. Once this is so, it is un- understandable how an assessment/adjudication made under the Act levying or affirming the duty can be ignored because some years later another view of law is taken by another court in another person s case. Nor is there any provision in the Act for re-opening the concluded proceedings on the aforesaid basis.' There are no merits in this appeal - appeal dismissed.
Issues Involved:
1. Jurisdiction of the Central Excise officer to demand differential duty. 2. Validity of the demand for differential duty and interest. 3. Appealability of the letter dated 30.07.2009. 4. Legitimacy of the rejection of the refund claim. Summary: 1. Jurisdiction of the Central Excise officer to demand differential duty: The appellant contended that the letter dated 30.07.2009 demanding differential duty was issued without jurisdiction. They relied on the precedent set in *Metal Forgings v. Union of India 2002 (146) ELT 241* and argued that the Assistant Commissioner lacked the power to review the No Objection Certificate (NOC) dated 26.12.2007 and demand differential duty. The Tribunal, however, did not find merit in this argument. 2. Validity of the demand for differential duty and interest: The appellant argued that the differential duty along with interest was not payable, citing *State of U.P. v. Singhara Singh (1964) 4 SCR 485* and *L. Hriday Narain v. ITO (1970) 78 ITR 26*. The Tribunal noted that the appellant paid the differential duty and interest under protest and subsequently filed for a refund. The Tribunal upheld the lower authorities' findings that the duty was not self-assessed by the appellant and that the demand was based on an audit observation. The Tribunal referenced *CCE, KNP v. Flock India 2000 (120) ELT 285 (SC)*, stating that non-challenge of an appealable order results in its finality. 3. Appealability of the letter dated 30.07.2009: The appellant claimed that the letter dated 30.07.2009 was not an appealable order. The Tribunal disagreed, referencing *Gujarat Ambuja Cement Ltd.*, *Bhagwati Gases Ltd.*, *Hindustan Rubber & General Indus.*, and *Oswal Castings Pvt. Ltd.*, which established that communications affecting rights are appealable. The Tribunal emphasized that the appellant did not challenge the assessment made in the letter dated 30.07.2009, and thus, the order attained finality. 4. Legitimacy of the rejection of the refund claim: The Tribunal upheld the rejection of the refund claim, referencing the decision in *Supernova Exim Pvt. Ltd. 2018 (8) GSTL 318 (Tri.-Ahmd.)*. It was noted that the EPCG scheme covers only the import of capital goods and not domestically procured capital goods. The Tribunal concluded that the appellant was required to pay duty foregone under Notification No. 22/2003-C.E. and that the concessional duty rate of 5% did not apply to indigenous capital goods supplied under the EPCG scheme. The Tribunal also referenced the Supreme Court's decision in *ITC Ltd. [2019 (368) ELT 216 (SC)]*, which stated that refund provisions are executionary and cannot modify assessment orders. Conclusion: The appeal was dismissed, with the Tribunal affirming that the appellant's failure to challenge the assessment order dated 30.07.2009 precluded them from claiming a refund. The Tribunal found no merit in the appellant's arguments and upheld the lower authorities' decisions.
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