2017 (3) TMI 450 - AT - Customs

Refund claim - N//N. 11/2005-Cus dated 1st March 2005 - denial on the ground that refund claim was not accompanied by any order-in-appeal as required following the ratio of the decision of the Hon ble Supreme Court in Priya Blue Industries Ltd v. Commissioner of Customs (Preventive) 2004 (9) TMI 105 - SUPREME COURT OF INDIA - Held that - the order of the original authority is not a rejection of the refund claim but identifies lacunae that impede processing of the claim. It also goes on to advice the applicant to either produce an order-in-appeal setting aside the assessment or to get the bill of entry re-assessed - As the order of the adjudicating authority is not a rejection of the refund claim and as the impugned order has not set aside the return of the claim as ordered by the original authority there is no reason for interference by the Tribunal - appeal rejected - decided against Revenue.

Summary

Issues:
- Appeal against order-in-appeal dated 25th August 2006 of the Commissioner of Customs (Appeals), JNCH.
- Refund claim filed by M/s Vinka Industries for differential amount.
- Original authority's rejection of refund claim due to lack of order-in-appeal.
- First appellate authority directing lower authority to re-examine the issue.
- Revenue's appeal based on Supreme Court decision and circular of Central Board of Excise and Customs.
- Contention regarding setting aside of order-in-original by first appellate authority.
- Examination of eligibility for different rate of duty in a limited refund matter.
- Time limit for filing appeal against bill of entry.

Analysis:
The case involves an appeal against the order-in-appeal dated 25th August 2006 of the Commissioner of Customs (Appeals), JNCH. M/s Vinka Industries filed a bill of entry for clearance of cobalt metal powder and later claimed a refund for the differential amount based on exemption notification no. 11/2005-Cus. The original authority rejected the refund claim for not being accompanied by an order-in-appeal, citing a Supreme Court decision. The first appellate authority directed a re-examination of the issue, leading to Revenue's appeal based on the same grounds as the original authority and referring to a circular of the Central Board of Excise and Customs.

The Tribunal examined the orders of the original and first appellate authorities. It noted that the original authority did not reject the refund claim but identified procedural issues hindering its processing. The Tribunal found that the first appellate authority did not set aside the original communication but directed a re-examination of the claim for benefit under the notification. The Tribunal highlighted that the order of the original authority did not follow the essential process of issuing a show cause notice for rejection, which was not referred to in the order.

Consequently, the Tribunal rejected the appeal, emphasizing that there was no valid reason for interference as the original authority did not reject the refund claim and the first appellate authority's direction was in line with the advice given by the original authority. The decision was based on the procedural aspects and the lack of grounds for interference by the Tribunal, ultimately upholding the first appellate authority's direction for re-examination of the claim for benefit under the notification.