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2015 (11) TMI 1156 - AT - CustomsRefund claim - At the time of filing of Bills of Entry, the appellant did not claim the benefit of nil rate of duty - Notification No. 21/2002 serial No. 399 (iv) - The appellant filed a refund claim for refund of the customs duty paid on the construction materials and spare parts used in setting up of Mega Power Project on the ground that it was eligible for nil rate of duty applicable to the said project - Held that - it is obvious that contrary to what has been claimed by the appellant, at the time of assessment of Bills of Entry, it was entitled to the benefit of the said Notification pertaining to serial No. 399 (iv) which it claimed and was not entitled to the benefit of serial No. 400 of Notification No. 21/2002 which it did not claim (nor could it have claimed) as it did not possess the requisite certificates/ documents. The judgements of Bombay High Court in the case of Hero Cycles Ltd. Vs. Union of India (2009 (6) TMI 4 - BOMBAY HIGH COURT) and Delhi High Court in the case of Aman Medical Products Ltd. Vs. CC, Delhi (2009 (9) TMI 41 - DELHI HIGH COURT) are clearly not applicable to the present case, because in those cases duty was paid due to ignorance. Indeed, in the circumstances of this case, the judgements of Supreme Court in the cases of C.C. Vs. M/s. Flock (India) Pvt. Ltd. 2000 (8) TMI 88 - SUPREME COURT OF INDIA and Priya Blue Vs. CC (Prev.) (2004 (9) TMI 105 - SUPREME COURT OF INDIA) are squarely applicable and the appellant cannot be granted refund as it did not seek re-assessment of Bills of Entry which were finally assessed at the time of clearance of goods. - No infirmity in impugned order - Decided in favour of Revenue.
Issues:
Refund claim rejection based on eligibility for nil rate of duty under Notification No.21/2002 (Sr.No.400) - Failure to seek reassessment of Bills of Entry - Applicability of judgments of Bombay High Court and Delhi High Court - Benefit claimed under Notification No.21/2002 (Sr.No.399 (iv)). Analysis: The appeal before the Appellate Tribunal CESTAT Ahmedabad was against the rejection of a refund claim amounting to Rs. 2,88,51,903 based on the appellant's eligibility for a nil rate of duty under Notification No.21/2002 (Sr.No.400). The appellant had imported construction materials and spare parts for a Mega Power Project at concessional rates under Project Import. The Bills of Entry mentioned the project and the Notification, but a wrong serial number was cited. The appellant did not claim nil duty benefit under Sr.No.400 nor provided necessary documents. The Asst. Commissioner rejected the refund claim, citing the appellant's failure to seek reassessment of Bills of Entry, referencing judgments of the Supreme Court. The appellant argued that the Bills of Entry clearly indicated the project and the Notification, albeit with a wrong serial number. It contended that the imports were registered under project import, requiring provisional assessment. The appellant cited judgments of Bombay High Court and Delhi High Court to support its position. The Departmental Representative countered that the cited judgments were not relevant as the duty was not paid in error, and the appellant did not meet the conditions for nil duty under Sr.No.400 of Notification No.21/2002 at the time. The Tribunal noted that the appellant had claimed and received the benefit under Sr.No.399 (iv) of the Notification but did not claim under Sr.No.400 due to lacking necessary documents. The judgments of the Supreme Court were deemed applicable, emphasizing the appellant's failure to seek re-assessment of Bills of Entry. Ultimately, the Tribunal found no fault in the lower order, dismissing the appeal. The appellant's failure to claim the benefit under Sr.No.400 as it did not meet the conditions, coupled with not seeking re-assessment, led to the rejection of the refund claim. The judgments cited by the appellant did not apply in this scenario, as the duty was not paid in error, making the appellant ineligible for the refund under the relevant Notification.
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