2016 (1) TMI 514 - AT - Customs

Refund - export of Bauxite - duty was paid on the basis of Wet Metric Tons (WMT for short), whereas the appellant s contention is that it should have been paid on the basis of Dry Metric Tons (DMT) in accordance with the Sales- Purchase Contract with the buyers of the goods. - Held that - the shipping bill was assessed finally on the basis of information declared by the appellants themselves and since the assessments had become final, appellant s claim for refund on the basis of quantity of goods as per DMT is not sustainable in view of the various decisions of the Hon ble Supreme Court. In the instant case, the assessment was final and it was not challenged. We also find force in the contentions of the learned Authorised Representative that they had not raised this issue either in the documents such as shipping bill, invoices etc., nor had they brought it to the notice of the Customs Officers or claimed provisional assessment or paid duty under protest. - Refund not allowed - Decided against the assessee.

Summary

Issues Involved:

1. Refund claims based on Wet Metric Tons (WMT) versus Dry Metric Tons (DMT).
2. Refund due to shortage of goods.
3. Refund of Education Cess and S.H. Education Cess.

Detailed Analysis:

1. Refund Claims Based on WMT vs. DMT:

The appellants argued that the export duty should be calculated based on Dry Metric Tons (DMT) as per their Sales-Purchase Contract, rather than Wet Metric Tons (WMT) as mentioned in the shipping bills. They contended that they had paid excess duty and were entitled to a refund. However, the tribunal noted that the appellants had filed the shipping bills under the Self Assessment Procedure without specifying whether the quantity was in DMT or WMT. The invoices and shipping bills did not indicate DMT or WMT, and the appellants did not claim provisional assessment nor paid the duty under protest. The tribunal referred to the Supreme Court's consistent view that once an assessment order is finalized, a refund claim cannot be entertained without challenging the assessment order (citing Priya Blue Industries Limited, Flock (India) Pvt. Limited, and BPL Telecom Limited). Therefore, the tribunal concluded that the appellants' claim for a refund based on DMT was not sustainable.

2. Refund Due to Shortage of Goods:

The tribunal acknowledged that the lower authorities had sanctioned refunds for shortages noticed at the time of clearance of goods. This was evidenced by the Customs Preventive Officer's noting on the reverse of the shipping bills, indicating the actual quantity exported. The tribunal agreed that the appellants were eligible for a refund on this count without any reassessment of the shipping bill.

3. Refund of Education Cess and S.H. Education Cess:

The tribunal noted that the appellants had paid Education Cess and S.H. Education Cess on their own volition, despite there being no levy on the goods. The collection of these amounts by the department was without authority of law, and hence, the lower authorities had rightly returned the same to the appellants. The tribunal confirmed that there was no reassessment of the shipping bills on this count.

Conclusion:

The tribunal found no reason to interfere with the impugned orders and dismissed the appeals. The decision was dictated and pronounced in open court.