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TMI Blog2019 (1) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... ided against appellant. - APPEAL No. C/96/2012 - A/85039/2019 - Dated:- 11-1-2019 - Ajay Sharma, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri A.B. Nawal, Advocate, for appellant Shri Roopam Kapoor, Commissioner (AR), for respondent ORDER Per: Sanjiv Srivastava This appeal is directed against order in appeal No 618(CRC-I)/ 2011 (JNCH)/IMP-538 dated 20.10.2011 of the Commissioner of Customs (Appeal) Mumbai II. By the said order Commissioner (Appeal) has upheld the order of Deputy Commissioner of Customs CRC-1 JNCH URA, rejecting the refund claim filed by the Appellants. The order of Deputy Commissioner is reproduced below: I reject the refund amount of ₹ 1,13,33,651/- (Rupees One Crore Thirteen Lakhs Thirty Three Thousand Six Hundred and Fifty One Only) pertaining to three refund claims under Section 27 of the Customs Act, 1962 as claimed by M/s Currency Note Press Nashik Road. 2.1 Appellants have vide Bill of Entries as detailed below imported NRB CWBN paper and paid duty at the time of clearance. S No B/E Number Date TR-6 Challan No Date Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cals [2009 (244) ELT 361 (T-Mum)] k. HEG Ltd [2006 (205) ELT 254 (T-Mum)] l. MECON Ltd [2003 (153) ELT 574 (T-Kol)] m. Hindustan Petroleum Corporation Limited [2003 (156) ELT 425 (T-Chennai)] n. Senka Carbon Pvt Ltd [2007 (216) ELT 397 (T-Chen)] 3.3 Arguing for the revenue, learned Authorized Representative submitted - i. Issue whether the appellants could have claimed the refund without challenging the assessment order is no longer res-integra and he relies on the following decisions a. Flock India [2000 (120) ELT 285 (SC)] b. Priya Blue Industries [2004 (172) ELT 145 (SC)] c. Maharastra Cylinders Pvt Ltd [2010 (259) ELT 369 (Bom)] d. BPL Telecom Ltd. [2015 (325) ELT 467 (SC)] e. ACE Designers [2015 (3290 ELT 109 (Mad)] f. Karari Associates [2009 (236) ELT 23 (Bom)] ii. In view of the above decisions the appeal filed by the appellants do not have any merit and needs to be dismissed. 4.1 We have considered the submissions made in appeal and during the argument. 4.2 The refund claim filed by the appellant was rejected by the Deputy Commissioner after recording as follows: However, the Bills of Entry under reference are of 19.01.2010, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w: 5. I have gone through the impugned order and submission of the appellant. The appellant s contention is that an assessed Bills of Entry cannot be treated as assessment order and therefore law laid down by Hon ble Supreme Court in the case of Flock India 2000 (120) ELT 285 (SC) and Priya Blue 2004 (172) ELT 145 (SC) is not applicable to the present case. In this regard it is observed that it is settled law that Bill of Entry in itself an appealable order. Hon ble Tribunal in the case of Max India Ltd. V/s. Commissioner of Customs (ICD), New Delhi 2005 (192) ELT 246 (Tri.-Del) has held that assessment on Bill of Entry under section 47 is an appealable order in itself and can be challenged only in higher appellate forum within the period of limitation provided for the appeal. Similarly in the case of Amba Exports Inc. V/s. Commissioner of Customs, New Delhi 2006 (199) ELT 734 (Tri-Del), Hon ble Tribunal has held that assessment Bill of Entry is to be regarded as appealable order. Therefore there is no merit in the argument that assessed Bill of Entry is not an appealable order. 6. The appellant have argued that the B/E may be reassessed under Section 149 of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4.4 In case of Mafatlal Industries [1997 (89) ELT 247 (SC)], a nine member bench of Hon ble Supreme Court has laid down- 70. Re : (II) :We may now consider a situation where a manufacturer pays a duty unquestioningly - or he questions the levy but fails before the original authority and keeps quiet. It may also be a case where he files an appeal, the appeal goes against him and he keeps quiet. It may also be a case where he files a second appeal/revision, fails and then keeps quiet. The orders in any of the situations have become final against him. Then what happens is that after an year, five years, ten years, twenty years or even much later, a decision is rendered by a High Court or the Supreme Court in the case of another person holding that duty was not payable or was payable at a lesser rate in such a case. (We must reiterate and emphasise that while dealing with this situation we are keeping out th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court. It is necessary to point out in this behalf that for filing an appeal or for adopting a remedy provided by the Act, the limitation generally prescribed is about three months (little more or less does not matter). But according to the present practice, writs and suits are being filed after lapse of a long number of years and the rule of limitation applicable in that behalf is said to be three years from the date of discovery of mistake of law : The incongruity of the situation needs no emphasis. And all this because another manufacturer or assessee has obtained a decision favourable to him. What has indeed been happening all these years is that just because one or a few of the assessees succeed in having their interpretation or contention accepted by a High Court or the Supreme Court, all the manufacturers/Assessees all over the country are filing refund claims within three years of such decision, irrespective of the fact that they may have paid the duty, say thirty years back, under similar provisions - and their claims are being allowed by courts. All this is said to be flowing from Article 265 which basis, as we have explained hereinbefore, is totally unsustain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y under the Act holds erroneously, while exercising its jurisdiction and powers under the Act that a transaction is taxable, it cannot be said that the decision of the authority is without jurisdiction. We respectfully agree with the above propositions and hold that the said principles apply with equal force in the case of both the Central Excises and Salt Act and the Customs Act. Once this is so, it is ununderstandable how an assessment/adjudication made under the Act levying or affirming the duty can be ignored because some years later another view of law is taken by another court in another person s case. Nor is there any provision in the Act for re-opening the concluded proceedings on the aforesaid basis. We must reiterate that the provisions of the Central Excise Act also constitute law within the meaning of Article 265 and any collection or retention of tax in accordance or pursuant to the said provisions is collection or retention under the authority of law within the meaning of the said article. In short, no claim for refund is permissible except under and in accordance with Rule 11 and Section 11B. An order or decree of a court does not become ineffective or unen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot, be countenanced. The view taken by us also gain support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer, may refund, the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act therefore, an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for refund which if we may term it so is in the nature of execution of a decree/order. In the case at hand it was sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Order of Assessment having been modified in Appeal or reviewed a claim for refund can be maintained. 9. In our view, the ratio in Flock (India) s case (supra) fully applies. We, therefore, see no substance in the Review Petition. Accordingly, the Review Petition stands dismissed with no order as to costs. 4.7 In case of BPL Telecom Ltd [2015 (325) ELT 467 (SC)] Hon ble Apex Court held Though initially dispute arose about classification of the goods in question, viz., equipments pertaining to setting up of VSAT terminals used in television broadcasting, that was decided and on that basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a speaking order has not been passed in the matter. However, the fact that the assessing officer has failed to pass a speaking order would not invalidate the assessment order so as to file refund claim on 10-4-2003 and seek refund of duty paid on the enhanced value as per the assessment order. In other words, pendency of the application seeking a speaking order would not entitle the appellant to seek refund of duty paid as per the assessment order. It is well settled by the decisions of the Apex Court in the case of Flock (India) Pvt. Ltd. (supra) and Priya Blue Industries Ltd. (supra) that so long as the assessment order stands the question of granting refund does not arise at all. 8. The argument of the appellant that unless an appealable speaking order is passed, the importer cannot file an appeal against the assessment order is without any merit. Assessment order passed on the bill of entry is an appealable order and the same can be challenged even in the absence of a speaking order. In other words, in the absence of a speaking order, it cannot be said that the assessment order is not appealable. Where an assessment order is passed without giving reasons and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the present case. As held in these cases, the appellate authority can properly decide the appeal only if the assessment order is a reasoned order. But it does not mean that in the absence of reasons the duty paid pursuant to the assessment order is liable to be refunded. 11. By inserting Section 17(5) into the Customs Act, 1962 with effect from 13-7-2006 the legislature has made it mandatory for the assessing officer to pass a speaking order within the time stipulated therein. Even before the insertion of the above provisions, the assessing officer was bound to pass a speaking order wherever demanded. However, the fact that a speaking order is not passed would not entitle the importer to claim refund of duty paid as per the assessment order. Therefore, the decision of the authorities below in rejecting the refund claim of the appellant by relying upon the decision of the Apex Court in the case of Priya Blue Industries Ltd. (supra) cannot be faulted. 4.10 Chennai High Court has in case of ACE Designers distinguished the decision of Karnataka High Court in case of Karnataka Power Corporation Ltd and that of Delhi High Court in case of Aman Medicals and held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No. 18/2000-Cus. The assessment made in the Bill of entry is totally a different claim from the one made in the refund application. We, therefore, have no hesitation to hold that the 1st respondent, having not challenged the order of assessment, cannot at a belated stage, claim refund by pressing into service another Notification and, therefore, the refection of the refund claim by the Assessing Officer and rightly held by the Commissioner (Appeals) is clearly sustainable. The Tribunal, without discussing the decisions, has, by a cryptic order, allowed the appeal of the 1st respondent following the decision of the Supreme Court in Karnataka Power Corporation Ltd. case (supra), which decision, is clearly distinguishable on facts, as narrated above. This Court is of the considered opinion that the decision of the Supreme Court in Flock (India) Pvt. Ltd. case and Priya Blue Industries case (supra) are squarely applicable to the facts of the present case. Accordingly, the substantial question of law is answered in favour of the appellant/Revenue and against the 1st respondent/assessee. 4.11 Appellants have relied upon the decision of the Delhi High Court in case of Kent Ro Syst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has not passed on the duties and as such the question of unjust enrichment would not arise in the matter. That is not for us to answer today. That would only be on an appropriate application being filed for relief after original orders of assessment which have been quoted in our judgment are modified. Plain reading of the above order makes it is clear that the refund claim is not maintainable till the order of assessment is modified in view of the decision of the Apex Court in case of Priya Blue. However exercising the extraordinary jurisdiction under Article 226 of Constitution of India, High Court has directed for amendment of the assessment order. Tribunal being the creation of statue do not have such extraordinary jurisdiction as can be exercised by the High Court. In fact the decision goes against the Appellant s as the ratio decidendi of the same is that refund claim is not maintainable without modification of the assessment order. 4.13 Thus the clear position which emerges from all the decisions of Hon ble Supreme Court and High Courts is that the refund claim under section 27 is not maintainable unless the order of assessment is modified in the appellate procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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