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2019 (4) TMI 1710 - AT - CustomsRefund claim - denial of refund on the ground that without challenging assessment order on the shipping bill - HELD THAT - In KARNATAKA POWER CORPORATION LTD. VERSUS COMMR. OF CUS. (APPEALS) , CHENNAI 2002 (4) TMI 79 - SUPREME COURT OF INDIA and AMAN MEDICAL PRODUCTS LTD. VERSUS COMMISSIONER OF CUSTOMS, DELHI 2009 (9) TMI 41 - DELHI HIGH COURT it has been held that filing of refund claim itself is a challenge of the assessment order, and the legitimate right of refund cannot be ignored - Thus, non-challenging of the assessment order is not a ground to deny the refund of duty wrongly collected and therefore, the decision of the Commissioner (Appeals) on this issue requires no interference. Time limitation - HELD THAT - It is seen that the Commissioner (Appeals) has referred to Section 16 Section 51 of the Customs Act to arrive at the conclusion that the relevant date for reckoning the rate of duty to be paid is the date of let export order. Further, it is seen that the enhanced duty was paid by the respondent after issuing letter of protest. Therefore, limitation does not apply even if it is considered as subsequent claim - the refund claim then cannot be said to be time barred. Appeal dismissed - decided against Revenue.
Issues:
1. Refund claim regarding excess duty paid on FOB value. 2. Refund claim for differential duty due to change in duty rate. 3. Legitimacy of filing refund claim without challenging assessment order. 4. Time limitation for filing revised refund claim. Analysis: 1. The appeal pertains to a refund claim by the respondents for excess duty paid on FOB value and differential duty due to a change in the duty rate. The respondents initially filed a refund claim for &8377; 71,74,423/- on 16.12.2008, followed by a revised claim for &8377; 2,89,22,625/- on 13.03.2009, contending that they are not liable to pay the differential duty as the let export order was issued before the change in duty rate. The Commissioner (Appeals) allowed the refund, leading to the department's appeal before the Tribunal. 2. The department argued that the revised claim filed on 13.03.2009 was time-barred as it was considered a subsequent claim. However, the Tribunal noted that the relevant date for determining the duty rate was the date of the let export order, which preceded the change in duty rate. The Commissioner (Appeals) correctly applied the Customs Act provisions to conclude that the refund claim was not time-barred. Therefore, the Tribunal upheld the decision of the Commissioner (Appeals) on this issue. 3. The department contended that the respondents should have challenged the assessment order on the shipping bill before filing the refund claim. However, the Tribunal cited precedents stating that filing a refund claim itself challenges the assessment order, and the right to a legitimate refund cannot be ignored. Therefore, the Tribunal found that the non-challenging of the assessment order was not a valid ground to deny the refund. The decision of the Commissioner (Appeals) on this issue was upheld. 4. In summary, the Tribunal dismissed the department's appeal, affirming the Commissioner (Appeals)' decision to grant the refund to the respondents. The Tribunal found that the refund claim was legitimate, not time-barred, and the non-challenging of the assessment order did not impact the right to a refund. The order was pronounced in open court, concluding the matter.
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