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2018 (11) TMI 1477 - AT - CustomsRefund claim - rejection on the ground that the appellants cannot claim the refund directly without challenging the assessment order - Held that - The issue is squarely covered by the decision of the Division Bench of this Tribunal in M/S. BHARAT ELECTRONICS LIMITED VERSUS COMMISSIONER OF CUSTOMS 2016 (11) TMI 852 - CESTAT BANGALORE , wherein this Tribunal has allowed the appeal of the assessee by way of remand by holding that there is no requirement for re-assessment under Section 149. The appeals of the appellant are allowed by way of remand to the original authority with a direction to consider the refund of the appellant without insisting on the requirement for reassessment under Section 149 - The assessee s claim for refund may be validated under Section 27 and paid to them - appeal allowed by way of remand.
Issues:
1. Appellant's entitlement to refund without challenging assessment order. 2. Interpretation of Section 149 of the Customs Act. 3. Applicability of Notification No.2/2011-CE and Notification No.19/2012-CE. 4. Comparison of judgments in M/s. Priya Blue Industries Ltd. and Aman Medical Products Ltd. 5. Consideration of refund under Section 27 of the Customs Act. Analysis: 1. The appellant, engaged in trading, filed 9 Bills of Entry for goods clearance under specific tariff classifications. Subsequently, they realized eligibility for duty exemption under Notification No.2/2011-CE, resulting in excess duty payment of ?11,04,926. The appellant sought amendment of Bills of Entry under Section 149 of the Customs Act for refund, which was rejected by the lower authority, leading to appeals before the Commissioner (Appeals) and subsequently before the Tribunal. The issue centered on whether the appellant could claim refund without challenging the assessment order, as per M/s. Priya Blue Industries Ltd. judgment. 2. The appellant argued that the respondent should have considered the administrative order within appealable orders under Section 28. They contended that since there was no dispute regarding the exemption, the Bill of Entry could be amended under Section 149 without challenging the assessment. Citing judgments like Aman Medical Products Ltd. and Micromax Informatics Ltd., the appellant emphasized that assessments need not be challenged in certain situations. The Tribunal, considering the Division Bench's decision in Bharath Electronics Ltd., allowed the appeals by way of remand, directing refund consideration under Section 27 without reassessment under Section 149. 3. The Tribunal's analysis focused on the exemption availability under the Notification and the denial of refund due to the appellant's failure to challenge the assessment. Referring to the Division Bench's findings in Bharat Electronics Ltd., the Tribunal highlighted the amendment in Section 27 post-2011, eliminating the need for reassessment before refund consideration. The Tribunal emphasized the entitlement of the importer to the benefit of the Notification and directed the original authority to validate the refund claim without insisting on reassessment under Section 149, in line with the principles established in the Bharat Electronics Ltd. case. 4. The Tribunal's decision to allow the appeals by way of remand underscored the importance of considering refund claims under Section 27 without mandating reassessment under Section 149, aligning with the precedents set in similar cases. By following the principles laid down in Bharat Electronics Ltd. and interpreting the provisions of the Customs Act, the Tribunal upheld the appellant's right to seek refund without challenging the assessment order, thereby providing a favorable outcome to the appellant in the present appeals.
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