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TMI Blog2024 (6) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and Section 11B of Central Excise Act are only executionary in nature and cannot result in setting aside or modifying the assessment orders (both on direction of the Department or self assessment). In these proceedings, if these assessment orders are to be modified then resort should have been taken to the appellate proceedings as provided in law - The order of Appellate Authority to the extent whereby he has held that appellant having not challenged this letter dated 30th July, 2009 by way of appeal cannot claim refund of duties paid by way of proceeding under Section 27 of Custom Act,1962 or Section 11B of Central Excise Act, 1944. In case of Mafatlal Industries [ 1996 (12) TMI 50 - SUPREME COURT] it was held that 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 un- understandable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.T.T. Ltd., New Delhi), Delhi-Moradabad Road, Gajraula, District-J.P. Nagar, in view of discussions and findings in para 5 supra." 2.3 Aggrieved appellant preferred appeal before the Commissioner (Appeals), Meerut-II, who vide OIA dated 31.05.2011 rejected the appeal of the appellant. 2.4 Aggrieved appellant filed appeal before this Tribunal and Tribunal vide Final Order No.A/71092/2019 dated 18.06.2019 remanded the matter back to Commissioner (Appeal) by observing as follows:- "4. On perusal of impugned order, we note that learned Commissioner (Appeals) has made the following observations:- "On a perusal of the impugned order, it is seen that all the calculation of duty payable on the imported/indigenous capital Goods for conversion of 100% EOU status to EPCG scheme was done on self assessment basis by the appellant as per the requirement of the procedure prescribed under EXIM Policy for the purpose of the de-Bonding of 100% EOU to DTA/EPCG scheme. I further find that appellant, while self assessing their liability, erred and assessed the liability @ 5%, as in the case of indigenously procured "capital goods" since as per the provisions laid down in CBEC Customs Manual for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 26.08.2010 not an appealable order, hence the appellant's right to claim refund survives even after issuance of the same. In this regard, he place reliance on BEC Foods V. Commissioner of Central Excise, Raipur 2003 (158) ELT 311 (Tri.-Del); Differential duty along with interest was not payable by the appellant. Reliance in this regard is placed on State of U.P. V. Singhara Sing (1964) 4 SCR 485 and L. HridayNarain V. ITO (1970) 78 ITR 26; Letter dated 30.07.2009 not appealable under the Act. Findings recorded in the impugned order are perverse, illegal and contrary to the material available on record. Reliance placed on the decision of this Hon'ble Tribunal in Supernova Exim Pvt. Ltd. 2018 (8) GSTL 318 (Tri.-Ahmd.) is also misplaced as the said decision is distinguishable on facts. 3.3 Learned Authorized Representative reiterates the findings recorded in the orders of the lower authorities. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 For upholding the rejection of refund claim again in the denovo proceedings, impugned order records as follows:- "5. I have carefully gone through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant, under protest, was questioned/ disputed only by way of filing a refund application. In this context I find that Hon'ble Apex Court in the matter of CCE, KNP Vs Flock India as reported in 2000(120) ELT 285 has held as under:- Order- Appealable order- Finality-Non-challenge of an appealable order - Effect- Where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order The assessment letter dated 30.07.2009 was communication of a decision made under the provisions of the Central Excise Act and was, therefore, appealable. Under the circumstances and given the fact that the appellant did not challenge the assessment of duty made vide letter dated 30.07.2009 by way of filing an appeal against the same, his appeal against the rejection of the refund claim was without any merit, as the adjudicating authority could not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the claim to avail the exemption has been denied and hence the communication is an order and an appeal very much lies before the Commissioner (Appeals). In this view of the matter we remand the case to the Commissioner (Appeals) for fresh decision on the merits of the matter viz. on the claim of the appellants to the benefit of the exemption under Notification No. 67/95-C.E." B. Bhagwati Gases Ltd. tribunal observed as follows:- " 5. It is true that there was no adjudication order as such, but it cannot be said that the impugned communication was a letter simplicitor. The appellant was informed in clear terms that it could remove the capital goods only on payment of Cenvat credit taken on capital goods leaving no option to it but to pay the duty before removing the capital goods or, else, face consequences. Under Section 35 of Central Excise Act, appeal lies not only against a decision but also an order and we are inclined to think that where the order impugned determines the rights of the party or is likely to affect its rights, communication thereof cannot be said to be a communication simplicitor. It is common knowledge, more often than not, that orders are passed in the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed by the Commissioner (Appeals) as non- maintainable. The Tribunal in this case held that if on consideration of the facts and circumstances, it is found that the order communicated by the impugned letter is such as to affect the rights of the party, the appeal would be maintainable; as the law does not countenance a situation where the person is rendered remediless and that in circumstances of the case, the only option available to the appellant was to approach the Commissioner (Appeals) and Commissioner (Appeals) was obliged to decide the matter on merits. The Tribunal set aside the Commissioner (Appeals)"s order and remanded the matter back to him to pass a fresh order in accordance with law. In a similar case of General Metallisers Ltd. (supra), where the goods of the Appellant had been attached for recovery of interest on Cenvat credit demands under Section 11 and their appeal was dismissed by the Commissioner (Appeals) as non-maintainable, the Tribunal set aside the Commissioner (Appeals)"s order and directed the adjudicating authority for fresh decision on the basic issue of liability of the Appellant for interest under Section 11AA." D. Oswal Castings Pvt. Ltd., fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment, 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. (supra). 39. In Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.) = (2000) 6 SCC 650, the question which came up for consideration before this Court was non-challenge of an appealable order where the adjudicating authority had passed an order which is appealable under the statute, and the party aggrieved did not choose to file an appeal. This Court held that it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing the order. The provisions of the Central Excise Act, 1944 came up for consideration. The Court has observed : "10. Coming to the question that is raised, there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 provision for a period of limitation indicates that a refund claim could be filed without filing an appeal. Even under Section 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 the 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." (emphasis supplied) 41. It is apparent from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but against "any order" which is of wide amplitude. The reasoning employed by the High Court is that since there is no lis, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts (supra). 44. The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re-assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of Appellate Authority to the extent whereby he has held that appellant having not challenged this letter dated 30th July, 2009 by way of appeal cannot claim refund of duties paid by way of proceeding under Section 27 of Custom Act,1962 or Section 11B of Central Excise Act, 1944 is in line with the decision of Hon'ble Apex Court referred above and cannot faulted with. 4.7 In case of Mafatlal Industries [1997 (89) ELT 247 (SC)] following has been held: "70. …… The argument that the finding of the authority that a particular transaction is taxable under the Act is a finding on a collateral fact and, therefore, resort to civil court is open, was expressly rejected and it was affirmed that the whole activity of assessment beginning with the filing of the return and ending with the order of assessment falls within the jurisdiction of the authorities under the Act and no part of it can be said to constitute a collateral activity not specifically or expressly included in the jurisdiction of the authorities under the Act. It was clarified that even if the authority under the Act holds erroneously, while exercising its jurisdiction and powers under the Act that a tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the bonded premises. The duty involved on such clandestinely removed machinery was 13,22,559/-, which was paid by the appellants along with interest at full rate. The Customs Bonded Warehousing License of the appellant was thereafter suspended vide Order-in-Original dated 8- 8-2005 issued by the Assistant Commissioner. The appellants were, therefore, required to pay duty of Customs and Central Excise on the remaining capital goods which were brought under the bond. In the meantime, the Development Commissioner permitted the conversion from 100% EOU scheme to EPCG Scheme vide letter dated 18- 8-2005 on payment of duty of capital goods (except for the capital goods seized by DRI) under the prevailing EPCG Scheme. The main contention of the appellant is that the duty foregone has been taken into account by the Development Commissioner while fixing the duty of 5% Customs duty on the capital goods, which were imported or indigenously procured duty free. We find that the EPCG scheme is only meant for import of capital goods and does not cover the capital goods which were procured domestically. We also find that the effective rate of customs duty on the capital goods imported under EP ..... X X X X Extracts X X X X X X X X Extracts X X X X
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