2009 (9) TMI 424 - AT - Customs

Refund claim- shortage contended as detected during examination before clearance and assessment order not required to be challenged. Assessment on second check basis in all three bills of entry and duty paid based on declared quantity. Shortage detected only during examination of goods prior to clearance while duty paid based on declared quantity. Held that- High Court in appellant s own case held in similar situation that assessment not required to be challenged. Impugned order rejecting refund not sustainable.

Summary

Issues:
Refund claim rejection based on failure to challenge assessment order before filing refund claim.

Analysis:
The appellant imported three consignments of scrap and filed separate bills of entry, which were assessed on a second assessment basis. Shortage was detected during examination of the goods, leading to refund claims of varying amounts. The Assistant Commissioner rejected the claims citing the need to challenge the assessment order first, as per a Supreme Court judgment. The Commissioner (Appeals) upheld this decision, prompting the appeals.

The appellant argued that since shortages were detected before clearance, challenging the assessment order was unnecessary, citing a Punjab & Haryana High Court judgment in a similar case. The Departmental Representative, however, supported the previous decisions based on the Supreme Court judgment.

After reviewing the submissions and records, the tribunal noted that duty was assessed based on declared values, and shortages were only found during examination before clearance. Referring to the Punjab & Haryana High Court judgment in a similar case involving the appellant, the tribunal held that challenging the assessment order was not required for filing refund claims in such circumstances. Consequently, the impugned order was set aside, and the appeals were allowed.