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TMI Blog2020 (12) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) provides that any person aggrieved by any decision or order may appeal to the Commissioner (Appeals). The right to file cross-objection is a substantive right conferred by a statue and can be exercised only in accordance with the provisions of the statue. Thus, neither could the Department have filed any appeal against the order of the Deputy Commissioner as it could not have considered itself to be aggrieved by the order since the Deputy Commissioner had not directed for the amount to be paid to Vivo Mobile but had directed to be credited in the Consumer Welfare Fund, nor was it permissible in law for the Department to have filed cross-objections in the appeal filed by the Vivo Mobile before the Commissioner (Appeals) since cross-objections cannot be filed before the Commissioner (Appeals). It is, therefore, more than apparent that the Department could neither have filed an appeal before the Commissioner (Appeals) against a part of the order passed by the Deputy Commissioner nor it could have filed cross-objections in the appeal filed by the Vivo Mobile before the Commissioner (Appeals) against that part of the order sanctioning the refund amount since the right to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff Act 1975 Tariff Act on the 12 bills of entry. However, in terms of a notification dated 17 March 2012, the Additional Duty was leviable at 1% under the entry at serial 263A for importing mobile phones provided condition no. 16 was satisfied. Condition no. 16 provides that for an assessee to claim lesser 1% Additional Duty, it should not have taken credit under rule 3 or rule 13 of the CENVAT Credit Rules 2004 CENVAT Rules in respect of the inputs or capital goods used in the manufacturer of these goods. 4. The Supreme Court, in the context of the import of Nylon Filament Yarn of 210 deniers, examined a similar condition no. 20 in SRF Ltd. vs Commissioner of Customs, Chennai 2015(318) ELT 607(SC) . The Appellant had claimed nil rate of Additional Duty by relying upon a notification dated 1 March 2002. The Deputy Commissioner of Customs held that SRF Ltd. would not be entitled to exemption from payment of Additional Duty since it did not fulfill condition no. 20 of the said notification, which is to the effect that the importer should not have availed credit under rule 3 or rule 11 of the CENVAT Rules in respect of the capital goods used for the manufacture of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion has a concurrent jurisdiction. Thus, it was pleaded that the refund claim itself should be treated as a request for re-assessment of the bills of entry, in view of the decision of the Supreme Court in Karnataka Power Ltd vs Commissioner of Customs (Appeals) 2002 (142) ELT 482 (SC) . 7. The Deputy Commissioner framed two questions to be decided and they are as follows: i) Whether the importer was eligible for the benefit of notification dated 17 March 2012 in terms of condition no. 16 in the light of judgement passed by the Supreme Court in SRF; and ii) Whether the importer was eligible for refund claim, if the answer to the aforesaid question is in the affirmative. 8. The Deputy Commissioner, in view of the decision of the Supreme Court in SRF Ltd, held that Vivo Mobile in terms of condition no. 16 of the notification dated 17 March 2012, would be required to pay Additional Duty at the reduced rate of 1%. The Deputy Commissioner then examined whether it was necessary for Vivo Mobile to get re-assessment of the bills of entry and for this purpose examined the decision of the Delhi High Court in M/s. Micromax Informatics Ltd. vs. Union of India10 that had been pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.4 The period for which the impugned refund claim was filed pertains to the period of 15.12.2014 to 05.06.2015. I find that in respect of a similar case of M/s YU Televentures Pvt. ltd., wherein refund claim was filed for the period January, 2015 to February, 2015, while disposing of Writ Petition No. W.P. (c) 6750/2016, the Hon ble Court of Delhi vide Order dated 03.08.2016 set aside the OIO dated 07.06.2016 passed by the Adjudicating authority, wherein the refund claim was rejected by the Adjudicating authority on the similar grounds. The relevant portion of the said Hon ble High Court Order is re-produced below: 16. With the Petitioner having already placed all the relevant documents on record and with the only reason for rejection of the refund application being the untenable ground of alleged failure by the Petitioner to submit reassessed B/Es, the Court sees no reason why the Respondents should be permitted to deny the Petitioner the grant of refund any longer. 17. Accordingly, the refund claim filed by the Petitioner on 28th December 2015 is allowed. The Respondents will now pay to the Petitioner the amount of refund as claimed together with interest due thereon u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioners for filing the appeal and they are reproduced below: B. It is also observed that the case of M/s YU Televentures Pvt. Ltd. [2016(340) ELT 88(Del.)] relied upon by the Commissioner (Appeals) to apply it to the present case is erroneous one as much as in the case of M/s YU Televentures Pvt. Ltd. the issue involved was whether refund can be granted without re-assessment of the B/Es. The relevant para no- 15 to 17 are reproduced below: 15. The impugned order dated 07th June 2016 passed by the respondent No-04 rejecting the petitioner s refund claim is accordingly set aside. 16. With the petitioner having already placed all the relevant documents on record and with the only reason for rejection of the refund application being the untenable ground of alleged failure by the petitioner to submit re-assessed B/Es. the Court sees no reason why the respondents should be permitted to deny the petitioner the grant of refund any longer. 17. Accordingly, the refund claim filed by the petitioner on 28th December, 2015 is allowed2. The respondents will now pay to the petitioner the amount of refund as claimed together with interest due thereon up to the date of refund not lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the amendments, and observed that there is no difference even after the amendments as self-assessment is also an assessment. The observations of the Supreme Court are as follows: 38. No doubt about it that the expression which was earlier used in Section 27(1)(i) that in pursuance of an order of assessment has been deleted from the amended provision of Section 27 due to introduction of provision as to self-assessment. However, as self-assessment is nonetheless an order of assessment, no difference is made by deletion of aforesaid expression as no separate reasoned assessment order is required to be passed in the case of self-assessment as observed by this Court in Escorts Ltd. v. Union of India Ors 2002-TIOL-2706-SC . 13. It needs to be noted that in Escort Ltd., the issue that had arisen for consideration before the Supreme Court was regarding the bills of entry classifying the imported goods under a particular tariff item and payment of duty thereon. The Supreme Court held that in such a case signing the bills of entry itself amounted to passing an order of assessment and, therefore, an application seeking refund on the ground that the imported goods fell unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assess the duty for making refund; and in case any person is aggrieved by any order which would include self assessment, he has to get the order modified under section 128 or under other relevant provisions of the Act. 48. Resultantly, we find that the order(s) passed by the Customs, Excise and Service Tax Appellate Tribunal is to be upheld and that passed by the High Courts of Delhi and Madras to the contrary, deserves to be and are hereby set aside. We order accordingly. We hold that the application for refund were not maintainable. The appeals are accordingly disposed of. Parties to bear their own coasts as incurred. 15. The applications that have been filed by the Department on 8 November 2019 for raising an additional ground contain five paragraph and they are reproduced below: 1. The aforementioned appeal is pending for disposal and listed for hearing on 27.01.2019. 2. Revenue would like to raise Additional Legal Ground in the light of ratio of laid down in the case of ITC Ltd. Vs CCE Kolkata IV Others/ 2019(368) ELT-246-SC. 3. Hon ble Supreme Court, in the aforementioned case has ruled that the claim for refund cannot be entertained unless the Assessment Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. 22. Sub-section (6) of section 129A provides that an Appeal to the Appellate Tribunal shall be in such form and shall be verified in such manner as may be specified by the rules made in his behalf. 23. It will also appropriate to reproduce section 129B of the Customs Act which deals with Orders of the Appellate Tribunal and it is as follows: SECTION 129B- Orders of Appellate Tribunal- (1) The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the memorandum of appeal, while the second part deals with the power of the Tribunal in deciding the appeal even on grounds not set forth in the memorandum of appeal. The proviso, however, stipulates that the Tribunal shall not rest its decision on any other ground, unless the party who may be affected thereby has had sufficient opportunity of being heard on that ground. 27. It, therefore, follows that if the appellant has to urge any ground that has not been set forth in the memorandum of appeal, the appellant has to take leave of the Tribunal to urge or be heard on such additional ground. However, the Tribunal in deciding the appeal shall not be confined to the grounds set forth in the memorandum of appeal or those taken by leave of the Tribunal but it would be necessary for the Tribunal, in such a situation, to afford an opportunity to the party who may be affected, to be heard on that ground. 28. As noted above, Vivo Mobile had filed applications for refund of the excess additional duty paid by it. An issue was raised by the Department in the deficiency memo that Vivo Mobile had not filed any document showing re-assessment of bills of entry in respect of the refund amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deals with Appeal to Commissioner (Appeals) and is as follows: SECTION 128. Appeal to Commissioner (Appeals)- (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Principal Commissioner of Customs or Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (1A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section, shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf. 32. Section 128A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jections, unlike sub-section of (4) of section 129A of the Customs Act which, in regard to Appeals to the Appellate Tribunal, provides for filing a memorandum of cross-objections against any part of the order appealed against and also provides that such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified. 34. A bare reading of section 128 of the Customs Act leaves no manner of doubt that whereas an appeal to the Commissioner (Appeals) can be filed by any person aggrieved by any decision or order passed under the Act by an officer of customs lower in rank than Principal Commissioner or a Commissioner of Customs, but no cross-objection can be filed against any part of the order passed by the officer of customs. On the other hand, section 129A(4) of the Customs Act which deals with Appeal before the Appellate Tribunal does provide for filing of cross-objections against any part of the order. Section 128 of the Customs Act dealing with Appeal to Commissioner (Appeals) provides that any person aggrieved by any decision or order may appeal to the Commissioner (Appeals). The right to file cross-objection is a substantive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. (5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule. 36. It is also pertinent to refer to the Customs (Appeals) Rule 1982. Chapter-II deals with Appeals to Commissioner (Appeals) , while Chapter-III deals with Appeals to Appellate Tribunal . Rule 3 contained in Chapter-II deals with Form of Appeal to Commissioner (Appeals), while rule 4 deals with Form of Application to the Commissioner (Appeals). Rule 5 deals with production of additional evidence before the Commissioner (Appeals). Rule 6 contained in Chapter-III deals with Form of Appeal to Appellate Tribunal as also memorandum of cross-objections to the Appellate Tribunal under section 129A(4) of the Customs Act. Form Number 82 relates to Appeal before the Commissioner (Appeals) under section 128 of the Customs Act, while Form Number 84 relates to Appeal before Appellate Tribunal under section 129A of the Customs Act. While there is no Form prescribed for filing cross-object ..... X X X X Extracts X X X X X X X X Extracts X X X X
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