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2013 (11) TMI 788 - AT - CustomsRejection of refund claim - Import of Germinated Oil Palm Seed for home consumption - Exemption under Notification 21/2002, dated 1-3-2002 - Held that - It is not disputed at the time of filing of bill of entry the appellant has complied with Condition of Notification 21/2002. Therefore, it is duty of the assessing officer to give benefit of exemption under Notification 21/2002 as the assessing officer failed to assess the goods properly. In this case the appellant are entitled to claim refund without challenging the assessment of bill of entry - when the exemption is available it is the duty of the assessing officer to give the exemption to the assessee. As the assessing officer failed to give the exemption, therefore appellant are entitled to claim refund without challenging the bill of entry and the facts of this case are distinguishable from the decision in the case of Flock India and Priya Blue 2004 (9) TMI 105 - SUPREME COURT OF INDIA - Following decision of Sasa Goa Ltd. 2010 (9) TMI 948 - CESTAT MUMBAI - Decided in favour of assessee.
Issues:
1. Refund claim rejection based on non-challenge of assessment. 2. Entitlement to refund claim under Notification 21/2002. 3. Duty of assessing officer in granting exemptions. 4. Applicability of previous judgments. Refund Claim Rejection: The appellant appealed against the rejection of their refund claim, citing the decision in Priya Blue Inds. Ltd. and Flock (India) P. Ltd., where it was held that a refund claim cannot be filed without challenging the assessment. The impugned order rejected the refund claim on this basis. Entitlement to Refund Claim under Notification 21/2002: The appellant procured goods classifiable under CTH 12092990, exempted under Notification 21/2002. Despite not claiming the exemption initially, they later realized their entitlement and filed a refund claim. The appellant argued that they had complied with all conditions of the Notification at the time of filing the bill of entry, and it was the duty of the assessing officer to assess the goods properly. Duty of Assessing Officer in Granting Exemptions: The assessing officer failed to grant the exemption under Notification 21/2002, even though the appellant had complied with its conditions. The Tribunal's decision in the case of Sasa Goa Ltd. was cited, emphasizing that when an exemption is available, it is the duty of the assessing officer to provide it to the assessee. As the assessing officer failed to do so in this case, the appellant was deemed entitled to claim a refund without challenging the bill of entry assessment. Applicability of Previous Judgments: The Tribunal distinguished the facts of this case from the decisions in Flock India and Priya Blue, emphasizing the duty of the assessing officer to grant exemptions where applicable. Relying on the precedent set by Sasa Goa Ltd., the Tribunal held that the appellants were entitled to the refund claim, setting aside the impugned order and allowing the appeal with consequential relief. This judgment highlights the importance of assessing officers fulfilling their duty to grant exemptions where warranted, even if not initially claimed by the assessee, and establishes the right of the appellant to claim a refund without challenging the assessment in such circumstances.
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