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TMI Blog2016 (1) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. - Appeal No.: C/10172,10174,10176,10177/2015 - ORDER No. A/10022-10025/2016 - Dated:- 8-1-2016 - Mr. P.M. Saleem, Member (Technical) For the Petitioner : Shri Paritosh Gupta, Advocate For the Respondent : Shri S.K. Shukla, Authorised Representative ORDER Per : Mr. P.M. Saleem M/s. Rawmin Mining and Industries Pvt. Limited, the appellants herein, have filed four appeals wherein the issue is common and therefore all the four appeals are taken up together for disposal. 2. Heard both sides. The learned Counsel for the appellants submits that the common issue involved in these appeals is refund claims on the ground that the subject goods namely, Bauxite was exported under the impugned shipping bills, wherein the duty was paid on the basis of Wet Metric Tons (WMT for short), whereas the appellants contention is that it should have been paid on the basis of Dry Metric Tons (DMT) in accordance with the Sales- Purchase Contract with the buyers of the goods. The appellants had issued final invoices and the quantity was revised on the basis of DMT, and the value was worked out accordingly. He submits that export duty should, therefore, he on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, 2011 and has been brought into effect from 08.04.2011. He submits that the appellants had filed the shipping bills themselves and assessed the same on their own. In the shipping bills the quantity is mentioned as such and there is no qualification to the same such as WMT or DMT. The invoices accompanying the shipping bill also shows the quantity without any mentioned of DMT or WMT. The FOB value is shown in both the invoices and shipping bills, on the basis of said weight declared in the said documents. He further submits that there is no dispute that the shipping bills were assessed finally, and there is no claim that the same has been assessed provisionally nor the duty has been paid under protest. He also draws attention of the Bench to the duty paying challans wherein there is no mention that it has been paid under protest or is covered under provisional assessment. He submits that if the assessee were claiming that assessment should be on the basis of DMT, they should have declared the same in the shipping bills and other documents and should have claimed provisional assessment or brought the same to the notice of the Customs officers/ department. The learned Authorised R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessed it and paid the duty mentioned in the shipping bills, on their own. They also did not claim provisional assessment, nor had they specifically brought it to the notice of the Customs Officers that as per the contract terms the goods are to be valued on DMT quantity basis. Under the said circumstances, we find force in the arguments of the learned Authorised Representative that the shipping bill was assessed finally on the basis of information declared by the appellants themselves and since the assessments had become final, appellant s claim for refund on the basis of quantity of goods as per DMT is not sustainable in view of the various decisions of the Hon'ble Supreme Court (supra). Relevant portion of the decision of the Apex Court in the case of Priya Blue Industries Limited (supra) is reproduced below:- 2. The facts necessary for the purposes of this Order are as follows : The Petitioners had imported a ship for breaking purposes. They filed a Bill of Entry. The amount of duty payable was assessed. The Petitioners paid the duty under protest. They then filed a Claim for refund of ₹ 79,64,648/- on the ground that duty had been wrongly levied. Their re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 7. We also see no substance in the contention that provisions for a period of limitation indicates that a refund claim could be filed without filing an Appeal. Even under Rule 11 under the Excise Act the claim for refund had to be filed within a period of six months. It was still held, in Flock (India) s case (supra), that in the absence of an Appeal having been filed no refund claim could be made. 8. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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