9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (1) TMI 441 - AT - CustomsRefund claim - Export of ROM - duty was paid without availing the benefit under Notification No. 62/2007-Cus dated 3.5.2007 - Appellant filed Shipping Bills in respect of export of ROM (Mixture of Iron Ore Fines and Lumps) and paid the duty as per the Tariff - Held that - In the Shipping Bills the appellant had not declared the goods as Iron Ore Fines. The consignment is in fact of ROM. On assessment of Shipping Bills and in pursuance to that the appellant had paid the duty. It is well settled law that the assessment order passed by the assessing authority is an appealable order under Section 28 of the Customs Act, 1962. The appellant had not challenged the assessment order and file the refund claim and in the refund claim they challenged the assessment order. We find that the Hon ble Supreme Court in the case of CCE, Kanpur vs Flock (India) Pvt Ltd (2000 (8) TMI 88 - SUPREME COURT OF INDIA) held that the assessment order cannot be challenged in the refund claim. In the case of Priya Blue (2004 (9) TMI 105 - SUPREME COURT OF INDIA) the Hon ble Supreme Court followed the decision in the case of Flock (India) Pvt Ltd (supra). The Hon ble Supreme Court while interpreting the words in pursuance of an order of assessment under Section 27 of the Customs Act only indicate that the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in appeal or reviewed a claim for refund can be maintained. We find that in the present case as the duty has been paid in pursuance of the assessment made by the assessing officer and that order has not been challenged. - Decided against assesse.
Issues Involved:
- Challenge of refund claims rejection based on assessment order challenge - Interpretation of Notification No. 62/2007-Cus for concessional rate of duty - Applicability of Public Notices in determining duty entitlement - Legal implications of challenging assessment orders in refund claims Analysis: 1. Challenge of Refund Claims Rejection based on Assessment Order Challenge: The appellant filed refund claims challenging the rejection based on not challenging the assessment orders. The appellant argued that since no order under Section 17(5) of the Customs Act was passed, they had the right to file refund claims and challenge the assessment order. The appellant cited the decision of the Calcutta High Court in Kothari Metals Ltd vs Union of India and Public Notice No. 14/2008 to support their contention. However, the Revenue contended that the appellant did not challenge the assessment order while filing the refund claims. The Revenue relied on the Supreme Court decisions in Collector of Central Excise vs Flock (India) Pvt Ltd and Priya Blue Industries Ltd vs CC (Preventive) to support their stance. 2. Interpretation of Notification No. 62/2007-Cus for Concessional Rate of Duty: The Tribunal analyzed the provisions of Notification No. 62/2007-Cus, which provides a concessional rate of duty for iron ore fines of Fe content 62% and below when exported. The Tribunal noted that the appellant declared the consignment as ROM and not specifically as Iron Ore Fines, which impacted the eligibility for the benefit under the Notification. The Tribunal referred to the relevant provisions of the Notification to determine the applicability of the concessional rate of duty. 3. Applicability of Public Notices in Determining Duty Entitlement: The appellant also relied on a Public Notice issued by the Commissioner of Customs & Central Excise, Goa, to support their claim. The Tribunal examined the Public Notice No. 14/2011, which clarified the treatment of consignments containing lumps along with fines. However, the Tribunal observed that the appellant did not declare the goods as Iron Ore Fines in the Shipping Bills, and the consignment was classified as ROM. The Tribunal emphasized the importance of challenging assessment orders and following the prescribed procedures for duty determination. 4. Legal Implications of Challenging Assessment Orders in Refund Claims: The Tribunal referred to the decisions of the Supreme Court in Collector of Central Excise vs Flock (India) Pvt Ltd and Priya Blue Industries Ltd vs CC (Preventive) to highlight the legal framework regarding challenging assessment orders. The Tribunal emphasized that the assessment order passed by the assessing authority is appealable under Section 28 of the Customs Act. The Tribunal concluded that the appellant's failure to challenge the assessment order before filing refund claims impacted the merits of the appeals. The Tribunal dismissed the appeals based on the precedents set by the Supreme Court and the specific facts of the case. In conclusion, the Tribunal's judgment focused on the procedural and substantive aspects of the case, highlighting the importance of following legal procedures and challenging assessment orders within the prescribed framework. The decision underscored the significance of accurate declaration of goods and adherence to statutory provisions in claiming duty benefits under relevant notifications.
|
