2004 (9) TMI 105 - SC - Customs

Refund under Customs - Maintainability of appeal - Held that - Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order - Even under Rule 11 under the Excise Act the claim for refund had to be filed within a period of six months - The words in pursuance of an Order of Assessment only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in Appeal or reviewed a claim for refund can be maintained - Following decision of Collector of Central Excise v. Flock (India) Pvt. Ltd. reported in 2000 (8) TMI 88 - SUPREME COURT OF INDIA - Decided against assessee.

Summary

Issues:
Claim for refund under the Customs Act, 1962 without challenging the Assessment in an Appeal.

Analysis:
The case involved a Review Petition seeking to review an Order related to a claim for refund under the Customs Act, 1962. The petitioners had imported a ship for breaking purposes and filed a Bill of Entry, paying the duty under protest. Subsequently, they filed a Claim for refund, which was rejected at various levels, including by the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT). The Tribunal's decision was based on the precedent set by the Supreme Court in the case of Collector of Central Excise v. Flock (India) Pvt. Ltd. The petitioners contended that the provisions of the Customs Act were different from the Excise Act, and therefore, the Flock (India) case should not be applicable.

Upon hearing the parties, the Court analyzed Section 27 of the Customs Act, which allows a claim for refund by a person who paid duty in pursuance of an Order of Assessment or a person who bore the duty. The petitioners argued that this provision implied that a claim for refund could be made without challenging the Assessment in an Appeal. However, the Court disagreed with this interpretation, emphasizing that once an Order of Assessment is passed, the duty is payable as per that order unless modified in an Appeal. The Court clarified that a refund claim is not an Appeal proceeding, and the officer considering the claim cannot review an assessment order.

The Court also addressed the argument regarding the period of limitation for filing a refund claim, stating that the provisions do not permit a refund claim without filing an Appeal. It highlighted that the words "in pursuance of an Order of Assessment" in Section 27 only determine who can claim a refund but do not allow a claim without the Assessment order being modified in an Appeal. Ultimately, the Court held that the precedent set in the Flock (India) case applied, and the Review Petition was dismissed with no order as to costs.

In conclusion, the judgment reaffirmed the principle that a claim for refund under the Customs Act, 1962 cannot be maintained without challenging the Assessment in an Appeal, as established in previous legal precedents.