2016 (8) TMI 711 - AT - Customs

Refund - duty paid on export of goods - whether refund claim can be lodged by an assessee without contesting the original assessments made - Held that - In the present case once the duty was paid under protest, the onus was on the department to vacate the protest lodged by the Appellant giving an appealable order that the assessment made was in order and view of the appellant was incorrect, so that Appellant could redress their grievance. - In the interest of justice and principles of equity Order-in-Appeal dated 01.09.2014 passed by the first appellate authority is set aside and the matter is remanded back to the original authority for deciding the issue of refund on merit and also to vacate the protest lodged by the Appellant as per their letters dated 11.04.2012 and 12.04.2012. - Matter remanded back.

Summary

Issues involved:
1. Whether an appellant can file a refund claim without appealing against the assessments on bills of export.

Analysis:
The Appellant filed an appeal against Order-in-Appeal No. 414/CUS(Exp)/KOL(Port)/2014, challenging the rejection of their refund claim by the Commissioner of Customs(Appeals), Kolkata. The Appellant argued that they executed a PD/Test Bond for testing purposes during export, disagreed with the assessment, paid duty under protest, and filed a refund claim when no communication vacating their protest was received. The Adjudicating authority rejected the refund claim, upheld by the first appellate authority. The Appellant contended that without an appealable order finalizing the provisional assessment, the refund claim should be considered a challenge to the assessment order. The Revenue, represented by ADC(AR), relied on case law stating that a refund cannot be claimed without challenging the assessment order. Both sides cited conflicting decisions of High Courts and CESTAT on this issue.

The Tribunal noted that the duty was paid under protest, placing the obligation on the department to issue an appealable order to vacate the Appellant's protest. Referring to the case law of Grasim Industries Ltd. v. CCE, Bhopal, the Tribunal emphasized that even if a refund claim is sanctioned, the Revenue can issue a demand under Section 11A without filing an appeal against the refund order. Considering the principles of equity and justice, the Tribunal set aside the Order-in-Appeal and remanded the matter to the original authority to decide the refund issue on merit and vacate the Appellant's protest. The appeal was allowed for a de novo adjudication with a personal hearing for the Appellant.

In conclusion, the judgment addressed the issue of whether a refund claim can be filed without appealing against the assessments on bills of export. The Tribunal emphasized the department's obligation to issue an appealable order when duty is paid under protest, citing relevant case law and principles of equity to allow the appeal and remand the matter for further adjudication.