2016 (1) TMI 588 - AT - Customs

Claim of Refund - Valuation - import of completely pre-mutilated mis-coloured woolen rags - goods were assessed by the department by enhancing the declared price from Euro 0.15 per kg. to US 0.37 per kg. and the appellant claimed the consignment on payment of enhanced rate of duty under protest. - Held that - the bill of entry has been assessed by the proper officer and the duty is paid on the basis of assessment and in view of this, the refund claim cannot be claimed unless the legal remedy of challenging the respective assessment order by filing appeal is exhausted. In view of the Hon ble Supreme Court judgment in the case of Priya Blue Industries Ltd. vs. CC (P) 2004 (9) TMI 105 - SUPREME COURT OF INDIA , the appeal of the appellant is not maintainable and the same is dismissed. - Decided against the assessee.

Summary

Issues:
1. Admissibility of refund claim without exhausting legal remedy of challenging assessment order by filing an appeal.

Analysis:
The appeal before the Appellate Tribunal CESTAT Mumbai was directed against the dismissal of the appellant's appeal by the Commissioner of Customs (Appeals), Mumbai-I. The case revolved around the import of completely pre-mutilated mis-coloured woolen rags by M/s. Raymond Ltd. The department assessed the goods by enhancing the declared price, leading to the appellant claiming the consignment on payment of enhanced duty under protest. Subsequently, the appellant filed a refund claim with the lower authority, which was rejected, prompting an appeal before the Commissioner (Appeals) who also dismissed it. The central issue was the admissibility of the refund claim without first challenging the assessment order through an appeal.

The learned Assistant Commissioner (AR) argued that once an order of assessment is passed, duty is payable as per that order unless reviewed or modified in an appeal. Citing the judgment of the Hon'ble Supreme Court in the case of Priya Blue Industries Ltd. vs. CC (P), it was highlighted that a refund claim is not an appeal proceeding, and the officer considering a refund claim cannot sit in appeal over an assessment made by a competent officer. The officer handling the refund claim cannot review an assessment order, as emphasized in the Supreme Court's earlier judgment in the case of CCE vs. Flock (India) Pvt. Ltd.

Based on the Supreme Court judgments cited, the Appellate Tribunal concluded that the appellant's appeal was not maintainable. The Tribunal dismissed the appeal, aligning with the legal principle that a refund claim cannot be entertained without exhausting the legal remedy of challenging the assessment order through an appeal. The judgment emphasized the significance of following the proper legal procedure and hierarchy in matters related to duty assessment and refund claims.

In summary, the Appellate Tribunal's decision was rooted in the legal principle that a refund claim cannot be pursued independently without first challenging the assessment order through an appeal. The judgment underscored the importance of adhering to the established legal procedures and hierarchy in customs matters, as highlighted by the Hon'ble Supreme Court's precedent-setting rulings in similar cases.