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TMI Blog2024 (7) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... vance against the final re-assessment order, the proper remedy would have been to have challenged the same and get the final reassessed amount modified, however, as observed in Mafatlal Industries [ 1996 (12) TMI 50 - SUPREME COURT ], the assessee would be liable to file an application under Section 27 of the Act and the provisions of the limitation period and the principle of unjust enrichment would be applicable. The appellant is, therefore, not entitle to the refund as claimed and the same have been rightly rejected by the Authorities below. Thus, all assessments, including self assessments are appealable and, therefore, unless the same is modified, no refund could be sanctioned so as to alter the assessment on the principle that refund proceedings are in the nature of execution proceedings and it is not open to the authority which processes the refund to make a fresh assessment on merits and to correct assessment on the basis of mistake or otherwise. There are no merit in this appeal - appeal dismissed. - MS. BINU TAMTA, MEMBER (JUDICIAL) AND MR. P. V. SUBBA RAO, MEMBER (TECHNICAL) Shri Chandan Kumar, learned Consultant for the appellant Shri Rajesh Singh, Authorised Represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 499 178044223 751174 308898 442276 6. F-89 18.01.2002 175714798 168114173 167445428 8269370 7600625 668745 7. F-93 09.02.2002 202268465 203167296 202278153 - 9698 898831 889143 8. F-58 06.09.2001 238878709 239929170 238819587 59122 1050461 1109583 9. F-97 09.01.2001 222708594 221755176 2206731168 2035426 953418 1082008 10. F-74 14.11.2000 284290736 282399655 282164562 2126174 1891081 235093 11. F-43 28.07.2000 210387238 187563762 186889131 23498107 22823476 674631 12. F-11 20.05.2002 254203122 244151875 239684168 14518954 10051247 4467707 13. F-71 12.08.1998 83039287 68087329 67637890 15401397 14951958 449439 12574088 From the aforesaid chart, the amount specified against B/E No.F-42 is only Rs.64,239/- and the total amount assessed was Rs.1,25,74,088/-, which the appellant could have claimed as refund of customs duty paid in excess. On 10.05.2013, the appellant filed the refund claim for Rs.2,03,10,413/-, however, the Assistant Commissioner vide order dated 16.09.2013 sanctioned the amount of Rs.1,25,74,088/- as finally assessed by order dated 02.04.2013 and rejected the balance amount of Rs.77,36,325/-. The observations of the Deputy Commissioner relating to the claim of Rs.77,36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C No. VIII48-27/07-08 dt. 31.08.2009 is not tenable to the claimant against the Bill of entry No. F-42 dt. 09.10.2002. The claimant is eligible for refund claim of Rs.64,239/- instead of Rs. 78, 00,564/-. Therefore, out of refund claim of Rs. 2,03,10,413/-, the refund claim amounting to Rs. 77,36,325/- is not admissible and the same is liable for rejection on the aforementioned grounds. 4. The appellant then filed a fresh refund application on 06.04.2018 for the balance amount of Rs.77,36,325/-, which has been rejected as being filed beyond the period of one year from the final reassessment order dated. The appeal challenging the said order has been rejected by the impugned orderin- appeal no.D-I/ Gr.7/308/2019 dated 26.08.2019. 5. We have heard Shri Chandan Kumar, learned Consultant on behalf of the appellant and Shri Rajesh Singh, learned Authorised Representative for the respondent/Revenue and perused the records of the case and the judgements cited at the par. 6. The crux of the arguments on behalf of the appellant is that in case of provisional assessment under Section 18, provisions of Section 27 of the Act are not applicable and, therefore, the refund sanctioning authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) provides that when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be . Any recoveries or refunds consequent upon the adjustment under subrule (5) of Rule 9-B will not be governed by Section 11-A or Section 11-B, as the case may be. However, if the final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11-B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9-B(5) re- agitating the issues already decided under Rule 9-B -assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11-B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee becomes entitled to additional refund on account of appellate orders or orders passed by a court. In this situation, the assessee is under an obligation to file an application under Section 27 of the Act, the limitation period accordingly applies and doctrine of unjust enrichment is also applicable. Explanation II to Section 27 of the Act deals with the 3rd category of situations. Such situations may occur after the passing of the final assessment, on account of rectification under Section 154 of the Act or because of any other reason, as a result of which the final order suffers an amendment or a change and some-amount becomes refundable. As far as Section 18 of the Act is concerned, when an amount becomes refundable after a final order is passed, the same has to be refunded immediately and for this purpose the assessee is not required to move an application under Section 27 and accordingly sub-section (2) to Section 27 would not apply. It is in this situation that the legislature has intervened and has now inserted sub-sections (3), (4) and (5) to Section 18 w.e.f. 13-7- 2006. These insertions obviously are not applicable to the case in hand as they do not have retrospecti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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