2016 (1) TMI 148 - AT - Customs

Claim of refund of CVD equivalent to cess paid on Import of natural rubber - Period of limitation - Held that - The bill of entry presented by the appellant was signed, signifying approval by the assessing officer. That itself is an order of assessment in such a situation. We are, therefore, not prepared to agree that there is no order of assessment in this case, and therefore, the limitation prescribed in Section 27 is emphatic in language. It says that an application for refund of duty shall be made before the expiry of six months from the date on which the duty was paid - therefore appellant s appeal on this point is rejected. - Decided against the assessee.

Summary

Issues Involved:
1. Refusal of refund claim on imported natural rubber.
2. Maintainability of refund application without challenging the assessment order.
3. Justification of unjust enrichment claim based on cost accountant certificate.

Analysis:

Issue 1: Refusal of Refund Claim
The appellant appealed against the rejection of their refund claim for the Central Value Duty (CVD) equivalent to cess paid on imported natural rubber. The appellant contended that several judgments, including those by the Apex Court, established that cess was not payable on the imported rubber. Hence, they filed a refund claim against the duty already paid.

Issue 2: Maintainability of Refund Application
The appellant argued that, as per the Delhi High Court judgment in Aman Medical Products Ltd. vs. CCE, refund claims are admissible when there is no assessment order in dispute. However, the Revenue, represented by the learned A.R., asserted that a refund application is not maintainable without challenging the assessment order, citing the Priya Blue Industries Ltd. vs. CC judgment. The Revenue also relied on the Escort Ltd. vs. UOI judgment, emphasizing that the order of assessment on the Bill of Entry is itself an assessment order, and the limitation period applies from the date of duty payment.

Issue 3: Unjust Enrichment Claim
Regarding the unjust enrichment claim, the appellant submitted a certificate from a cost accountant certifying that the cess paid was not treated as an expense in the profit and loss account but shown as recoverable. However, the Revenue argued that the certificate was submitted after the appeal rejection, and the timing of submission was crucial. The Tribunal, after considering both sides' submissions, emphasized the importance of the assessment order in refund applications. The Tribunal referred to the Aman Medical Products Ltd. judgment, highlighting the necessity of challenging the assessment order for refund claims. The Tribunal also discussed the precedence of the Supreme Court judgment in Priya Blue Industries Ltd., emphasizing that the assessment order stands unless reviewed or modified. Consequently, the Tribunal rejected the appellant's appeal on the grounds of maintainability without challenging the assessment order.

In conclusion, the Tribunal dismissed the appeal, emphasizing that the decision on the first issue rendered the discussion on the unjust enrichment claim unnecessary. The Tribunal upheld the assessment order's significance in refund applications, following the legal precedents set by the Supreme Court and previous judgments.