2018 (5) TMI 1371 - AT - Customs

Refund claim - vide N/N. 77/2008-Cus dt. 13.6.2008 the export duty on the said goods was withdrawn and consequently respondent filed refund claim of the same - refund claim was rejected on the ground that the N/N. 77/2008-Cus., exempting these goods from export duty was effective from midnight of 13.6.2008 and was not applicable to goods exported on or before 13.6.2008 - Held that - so far as the eligibility of exemption is concerned the matter stands decided by Tribunal decision in the case of Jindal Saw Ltd. 2011 (9) TMI 302 - CESTAT, MUMBAI wherein it has been held that the Let Export Order has been given on 13.6.2008 and therefore the benefit of N/N. 77/08 dated 13.6.2008 shall apply to the exports made by the appellant and hence they are rightly entitled for the refund of export duties wrongly paid by them - the goods exported on 13.6.2008 would be eligible for the exemption under N/N. 77/2008-Cus. Failure of the respondent to challenge the assessment of the shipping bills - Held that - the said ground regarding failure to challenge the assessment of shipping bill has been raised for the first time before Tribunal. It is settled law that Revenue cannot raise fresh grounds at the second appellate stage. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Eligibility of exemption under Notification No. 77/2008-Cus for goods exported on 13.6.2008.
2. Challenge of assessment of shipping bills by the respondent and its impact on refund application.

Analysis:

Issue 1: Eligibility of exemption under Notification No. 77/2008-Cus
The appeal was filed by Revenue against the order of Commissioner (Appeals) directing the Assistant Commissioner to consider the refund application. The dispute revolved around the effective date of Notification No. 77/2008-Cus, which withdrew export duty on certain goods. The original adjudicating authority rejected the refund claim, stating that the notification was not applicable to goods exported before its effective date. However, the Commissioner (Appeals) overturned this decision, holding that the notification was effective from midnight of 13.6.2008, making goods exported on that date eligible for exemption. The Tribunal, citing a previous case, affirmed that the benefit of the notification applied to exports made on 13.6.2008, entitling the appellant to a refund of wrongly paid export duties.

Issue 2: Challenge of assessment of shipping bills by the respondent
The second issue pertained to the respondent's failure to challenge the assessment of shipping bills and its impact on the refund application. The respondent argued that the notification came into effect at midnight on the date of notification, exempting their goods. They also contended that the failure to challenge the assessment order earlier did not preclude them from seeking a refund. The Tribunal concurred, stating that fresh grounds, such as the failure to challenge assessment, cannot be raised at the second appellate stage. Citing legal precedents, the Tribunal dismissed the Revenue's appeal, emphasizing that new grounds cannot be introduced at the appellate level.

In conclusion, the Tribunal upheld the Commissioner (Appeals)' decision, ruling in favor of the appellant and dismissing the Revenue's appeal on both issues. The judgment highlighted the significance of effective dates of notifications and the limitations on raising new grounds during appellate proceedings.