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TMI Blog2023 (6) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be issued, but which are not placed on record or along with the appeal memorandum, proposing inter alia to reject the refund claims of Rs. 45,45,970/-. It also appears that the respondent herein filed a common reply justifying its claim for refund, which was thereafter considered in adjudication. 3. It appears that the adjudicating authority, entertaining a belief that the claims of the assessee were not in order and that the assessee did not produce any documentary evidence to prove that their claim was not hit by unjust enrichment as enshrined under proviso to Section 27(2) of the Customs Act, 1962, after considering the reply filed by the assessee, vide Order-in-Original dated 31.12.2012, rejected all the assessee's claims, as proposed in the Show Cause Notices. 4.1 It appears that the assessee preferred an appeal before the first appellate authority against the rejection of its refund claims and the first appellate authority, vide impugned Order-in-Appeal No. 28/2013 dated 30.04.2013 has allowed the appeal of the assessee-appellant before him, thereby setting aside the rejection order of the adjudicating authority. 4.2 The learned first appellate autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which had attained finality. (vii) Reference is drawn to Board Circular No. 24/2004-Cus. dated 18.03.2004 wherein the Board has clarified that when there was no challenge to the assessment order, any refund claim was not maintainable. (viii) Reliance is placed on the following decisions:- a. ITC Ltd. v. Commissioner of Central Excise, Kolkata-IV [2019 (368) E.L.T. 216 (S.C.)] b. Commissioner of Central Excise v. Flock (India) Pvt. Ltd. [2000 (6) SC 650] c. Priya Blue Industries v. Commissioner of Customs (Preventive) [2004 (172) E.L.T. 145 (S.C.)] d. Commissioner of Central Excise, Meerut v. B.H.E.L. [2004 (163) E.L.T. 100 (Tri. - Del.)] e. Industrial House v. Commissioner of Customs, New Delhi [2008 (227) E.L.T. 539 (Tri. - Del.)] 6. Shri S. Balakumar, learned Assistant Commissioner appearing for the appellant, reiterated the above grounds preferred by the Revenue. 7. Per contra, Shri R.R. Padmanabhan, learned Consultant, appeared for the assessee-respondent and supported the findings of the learned first appellate authority. 8. We have considered the rival contentions and we have perused the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any documents in support of their claim that the burden / incidence of duty was not passed on to the ultimate consumers within the meaning of Section 27(2) of the Customs Act, 1962. It is the claim of the importer that the assessable value of the cargo was arrived at by adding 2% HSS load to the CIF price at the time of self-assessment instead of adding the trade margin of Rs.33/- per M.T. to the CIF value. 10.4 With regard to the quantity of import cargo, it was found by the adjudicating authority that there was variation between that declared in the Bills-of-Lading vis-à-vis Bills-of-Entry and thus the importer failed in the first test. 10.5 Further, he has observed that the cargo was assessed to import duty based on the price as per the formula set forth in the purchase orders and in the purchase orders, it was mentioned as to how the weighment quantity for assessment purpose was to be followed. 11.1 There is no dispute that the HSS agreement entered into was based on the purchase orders, the weighment quantity declared as per their own draft survey report (ADB) and the C&F price payable, as per clause 2.1, based on the certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly challenging the assessment order, which is contrary to the law laid down by the Hon'ble Supreme Court in the case of Flock (India) Pvt. Ltd. (supra) and Priya Blue Industries (supra). 13.1 It is the settled position of law that the right to appeal is available to an assessee as well as the Department, even against self-assessment; until and unless the "self-assessment" is modified and the duty thereafter is re-determined, no application would lie for refund of any duty from such self-assessment since the refund authority cannot assume the role of an adjudicating / assessing authority. This is because the scope of refund is limited as against the scope of adjudication proceedings and hence, the authority considering any refund application cannot revisit the adjudication proceedings for which he has no jurisdiction. This is also in view of separate statutory provisions being provided for, for both refund as well as adjudication proceedings. 13.2 The Hon'ble Supreme Court in the case of M/s. ITC Ltd. (supra) has held that even an order of self-assessment is an order against which an appeal would lie, provisions of Section 27 cannot be invoked in the absence of amendment or modifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India - 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra). . . 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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