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TMI Blog2014 (9) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... 31 of 2013 - - - Dated:- 19-9-2013 - G. Rohini and Challa Kodanda Ram, JJ. Shri Y. Sreenivasa Reddy, Counsel, for the Petitioner. Shri V. Gopalakrishna Gokhale, Standing Counsel, for the Respondent. ORDER This writ petition is filed by the petitioner seeking Writ of Mandamus, directing the 3rd respondent to refund the excess duty amount of ₹ 51,43,147/- along with interest at applicable rates in compliance with the Final Order No. 1492 of 2010, dated 29-11-2010 of the Hon ble Customs, Excise Service Tax Appellate Tribunal, Bangalore (in short CESTAT ) and declare the letter dated 8-8-2012 issued by the respondents as illegal, arbitrary, contrary to the provisions of the Customs Act, 1962 (for short the Act ) and unconstitutional and consequently direct the 3rd respondent-Assistant Commissioner of Customs Central Excise, Krishnapatnam Port, Nellore to immediately release the refund amount claimed and pass such other order or others as deems fit. 2. The deponent is the Director of M/s. Shiva Shankar Minerals Pvt. Ltd., Hyderabad (hereinafter referred to as petitioner ). The petitioner s company is an exporter of iron ore and on 25-9-2008 the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order for refund has been made under Section 11B of the Act. Section 11BB of the Act lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under sub-section (1) of Section 11B of the Act, then the applicant shall be paid interest at such rate, as may be fixed by the Central Government, on expiry of a period of three months from the date of receipt of the application. The Explanation appearing below Proviso to Section 11BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise but by an Appellate Authority or the Court, then for the purpose of this Section the order made by such higher Appellate Authority or by the Court shall be deemed to be an order made under sub-section (2) of Section 11B of the Act. It is clear that the Explanation has nothing to do with the postponement of the date from which interest becomes payable under Section 11BB of the Act. Manifestly, interest under Section 11BB of the Act becomes payable, if on an expiry of a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t bar refund claims under Section 27 of the Act. 6. Finally, the learned counsel also relied on the judgment reported in Commissioner of Customs, Cochin v. Shree Simandar Enterprises [2012 (283) E.L.T. 369 (Ker.)], wherein it was held as follows : 6. I have considered the rival contentions in detail. I am of the opinion that the stand of the petitioner in the review petition is totally hyper-technical and unreasonable. When an appellate authority allows an appeal filed against imposition of tax, duty, fine, penalty etc., it is the bounden duty of the assessing authority, as part of a democratic government, to refund the amounts covered by orders of the appellate authority, when appeals are allowed fully or partially. The same shall be refunded even without a formal request for the same. Certainly, on a request made for refund, the same shall be refunded immediately, failing which the assessing authority is bound to pay interest on the amount from the date when the refund became due. This position has been formally accepted by the Government of India also based on the decisions of the High Courts and the Supreme Court as is evident from Exts.P3 and P7. When by Ext. P3 and P7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny stretch of imagination for the simple reason that the same was done subject to the outcome of the analysis of the samples by the Chemical Examiner. .. (intentionally omitted as not necessary). In view of the settled position in law, I am inclined to hold that separate appeal against the order of assessment is not required to be filed as filing of refund claim is itself is challenge of assessment order. 8. Finally, after discussion the appellate authority found as follows : (8.4) In the light of the above findings, I am inclined to hold that, the assessment of impugned Shipping Bill is a conditional order and not a final assessment; that separate appeal against the order of assessment is not required to be filed as filing of refund claim is itself is challenge of assessment order; that refund claim cannot be rejected irrespective of whether the assessment is final or provisional; and that omission can be corrected under Section 154 of the Customs Act, 1962. The Assistant Commissioner was bound to correct the error or omission as provided under Section 154 and reassess the shipping bill under Section 17(4) of the Customs Act, 1962. Therefore, the rejection of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the order of assessment is not required to be filed as filing of refund claim is itself is challenge of assessment order; that refund claim cannot be rejected irrespective of whether the assessment is final or provisional; and that omission can be corrected under Section 154 of the Customs Act, 1962. 9. A counter affidavit has been filed by the 5th respondent and on behalf of other respondents. Para Nos. 1 to 8 of the counter affidavit is only narration of the proceedings beginning with the petitioner exporting the iron ore and method and manner under which the petitioner s claim for refund of excess duty, vide their refund application dated 5-1-2009, was dealt with culminating in the proceedings before the Tribunal are set out in detail. In para Nos. 9 to 11, the respondent had expressed their view of what the Tribunal s order mean details kind of calculations were sought to be given and thereby disputing that the petitioner s entitlement to the amounts of refund as claimed. 10. At this stage, we may record that what has been stated in Para Nos. 9 to 11 are the contentions/objections which have been raised for the first time before this Court in the affidavit and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of duty has been passed on to the buyer. The petitioner was always willing to provide all the details that the Respondents deemed necessary. The respondents are required to raise all the grounds for rejection of refund in the Show Cause Notice and not at a later stage. 12. While we are on this point, it may be useful to refer to the order of the Appellate Commissioner in Order-in-Original No. 7/2009(G) Cus., dated 12-8-2009, which was in fact confirmed by the CESTAT, the last fact finding authority under the Act held as follows : 6. I have carefully gone through the case records, Appeal memorandum and the submissions made both oral as well as written, at the time of personal hearing. The issues to be decide are (i) Whether refund claim without challenging the assessment of the impugned Shipping Bill is maintainable in terms of Board s Circular No. 24/2004, dated 18-3-2004; (ii) Whether assessment of the impugned Shipping Bill is provisional or final and (iii) Whether the calculation adopted by the Adjudicating authority treating the FOB value as transaction value and that duty needs to be paid on the transaction value is correct? Or treating the F.O.B. value as cum-dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 154 and reassess the shipping bill under Section 17(4) of the Customs Act, 1962. Therefore, the rejection of the claim for refund is not justifiable in law. 14. We have considered the rival submissions and we are in agreement with the learned counsel for the petitioner that merely because an SLP has been filed before the Supreme Court against the order of the Tribunal, the respondents cannot withhold the money, which is otherwise determined as the entitlement of the petitioner. As observed by the Appellate Authority in Order-in-Appeal No. 07/2009(G) Cus., dated 12-8-2009, primarily it is the duty of the authorities to levy, charge and collect the appropriate duty as applicable. In this case it is a finding of the authorities to the effect that at the time of clearance of the goods, petitioner had paid an excess amount of duty provisionally, and the petitioner was entitled to refund such excess amount. On the objections raised by the respondents for the first time in the writ petition, this court in exercise of the extraordinary jurisdiction under Article 226 of Constitution of India, cannot and should not enter into the arena, which has already been decided by the lower a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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