2015 (11) TMI 1400 - AT - Customs

Denial of refund claim - Reassessment in terms of Section 17 (4) of the Customs Act - Provisional assessment - Held that - Once an assessment is kept open, and resultantly provisional, the same would be provisional for all the aspects. It cannot be said that the assessment was finalized vis-a-vis a legal issue of addition of export duty in the assessable value and was provisional for the other aspects. Such assessment has been rightly held to be not a final assessment by the Commissioner (Appeals). - refund cannot be filed directly without putting a challenge to the assessment order are not directly applicable to the facts of the present case. The same relate to a situation where there was a lis between the assessee and the Revenue and that lis stands finally adjudicated in the adjudication order. When the order of assessment itself says that the same is open to reassessment, the assessee can admittedly file the refund claim by praying for reassessment of the order, which the Assistant Commissioner has himself allowed. The non-challenge to such an order, before filing the refund claim, would not act as rebuttal to the assessee s claim. - no justifiable reason to interfere in the impugned order of Commissioner (Appeals). - issue of inclusion of export duty in the assessable value of the final product to be exported is not in dispute and also stands settled by the Board s Circular dated 10.11.2008. As such we agree with the appellate authority that the differential excess duty paid by the respondent is required to be refunded to them. - Decided against Revenue.

Summary

Issues:
1. Denial of refund claim based on non-challenge to assessment order.
2. Validity of the assessment order subject to reassessment under Section 17(4) of the Customs Act.
3. Inclusion of export duty in the assessable value of the final product to be exported.

Analysis:
1. The main issue in this case revolves around the denial of the refund claim by the Revenue based on the non-challenge to the assessment order. The Commissioner (Appeals) noted that the order of the Assistant Commissioner was not final and subject to reassessment under Section 17(4) of the Customs Act. The appellant argued that the non-challenge to the order before filing the refund claim should not act as a rebuttal to the claim. The Tribunal agreed with the Commissioner (Appeals) that the assessment order was conditional and not final, allowing the refund claim without challenging the conditional order.

2. The validity of the assessment order being subject to reassessment under Section 17(4) of the Customs Act was a crucial aspect of the case. The Assistant Commissioner's order explicitly stated that the assessment was subject to reassessment in case of any changes in the Fe content and moisture content. The Commissioner (Appeals) correctly interpreted this as a provisional assessment, not a final one. The Tribunal supported this view, citing previous decisions and confirming that the non-challenge to such an order should not prevent the assessee from claiming a refund.

3. The issue of including export duty in the assessable value of the final product was clarified by the Board's Circular dated 10.11.2008. The Tribunal agreed with the appellate authority that the excess duty paid by the respondent needed to be refunded. This issue was not in dispute, and the Tribunal upheld the decision in favor of the respondent, rejecting the Revenue's appeal.

In conclusion, the Tribunal upheld the decision of the Commissioner (Appeals) and rejected the Revenue's appeal. The judgment emphasized the provisional nature of the assessment order, the right of the assessee to claim a refund without challenging the conditional order, and the requirement to refund the excess duty paid by the respondent as per the Board's Circular.