9911796707
TMI Blog2007 (8) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... on the decisions of the Apex Court in the case of Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.) and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) - 2004 (172) E.L.T. 145 (S.C.) holding that once the assessment order vide which duty was paid is not challenged and has become final, a refund claim is not maintainable whereas the other set of decisions are based on the Supreme Court decision in the case of Karnataka Power Corporation Ltd. v. Commissioner of Customs (Appeals), Chennai — 2002 (143) E.L.T. 482 (S.C.) wherein the assessee's claim for refund was held to be maintainable and the Apex Court did not insist that the assessee should have challenged the assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Customs himself and it was in that light that it remanded the matter back to the Assistant Commissioner to decide the issue afresh. Since the Hon'ble Supreme Court was not addressing that controversy, the observation made in Paragraph 2 of its order in a different context can never be construed to be impliedly over-ruling the ratio laid down in Flock India Pvt. Ltd. and in Priya Blue Industries (cited supra). For these reasons, we also hold that the decision of Larger Bench of the Supreme Court in the case of Dunlop India Ltd. v. Union of India and Others - 1983 (13) E.L.T. 1566 (S.C.) holding that there is no estoppel in law against the party in taxation matter and that the importer is entitled to ask for refund on a proper appraise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both Section 27 and Section 11B provide that whereas 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 implies that the claim of refund can be made without challenging the assessment order have been adequately dealt by the Apex Court decisions in the case of Priya Blue Industries and Flock (India) Pvt. Ltd., and negatived the relevant paragraphs of these decisions are reproduced below : Priya Blue "5.Under Section 27 of the Customs Act, 1962 a claim for refund can be made by any person who had (a) paid duty in pursuance of an Order of Assessment or (b) a person who ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewed under Section 28 and/or modified in an Appeal that 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. Flock India 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 the statutory right of filing an appeal, it is not open to the party to question the correctness of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if so advised." 5.Our attention has also been drawn to the Circulars issued by the Board as contained in the Customs Appraising Manual Volume V and Chapter 15 of the CBEC's Customs Manual of instructions which lay down that at times, when it is found that duty has been paid in excess than what was actually leviable on the goods, which excess payment may be due to lack of information on the part or importer/exporter or non-submission of documents required for claim of value or rate of duty or due to shortage/short landing, pilferage of goods, refund of excess amount of duty paid can be claimed by the importer/exporter under Section 27 of the Customs Act and further Board's Letter vide F. No. 55/98/70-Cus-IV, dated 25-8-1970, 249/70 provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar issued by the Board cannot stand in preference to the decision of the constitutional Bench of the Supreme Court. We also observed, that the Apex Court decision in the case of Priya Blue and Flock India were followed by the Tribunal and upheld by the Supreme Court in the case of HCL Perot Systems Ltd. v. Commissioner of Customs, New Delhi - 2004 (165) E.L.T. A77 (S.C.), Super Cassette Industries v. Commissioner of Customs - 2004 (163) E.L.T. A116 and that the Supreme Court decision in the case of Sales Tax Officer, Benaras Ors. v. Kanhaiya Lal Mukundlal Saraf, (1959) SCR 1350, which was followed in Shri Valabh Glass case was overruled by the Apex Court in the case of Mafatlal Industries Ltd. v. Union of India - 1997 (89) E.L.T. 217. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
