9911796707
TMI Blog2004 (9) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... to force of the Customs Valuation Rules, 1988 and that, for the subsequent period, the transaction value (invoiced value) was to be accepted. Against this order, both the department and the importer filed appeals with the Tribunal and the Tribunal in its order dated 5-1-1994 held that 8.3% loading was applicable for the entire period, i.e., for the period prior to the date of coming into force of the Customs Valuation Rules, 1988 as also the period thereafter. The importer challenged the Tribunal's order before the Supreme Court and the Apex Court remanded the case to the Tribunal for fresh consideration. Pursuant to the remand order of the Apex Court, the Tribunal disposed of the appeals as per order dated 25-8-2000, wherein it was held that, for the entire period, the assessments required to be finalised on the basis of the transaction value (invoiced value). Thus the department's appeal stood dismissed, while the importer's appeal stood allowed. The Tribunal's order dated 25-8-2000 [2001 (127) E.L.T. 508 (T)] was taken in appeal to the Supreme Court by the department, but without success. The department's appeal was dismissed by the Apex Court on 11-4-2001 [2002 (145) E.L.T. A25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Chennai Seaport during the periods 1987-1988 to 1991-1992. This claim was also rejected as time-barred as per order dated 13-2-2002. In the appeal filed by the assessee against this order of the original authority, the learned Commissioner (Appeals) found that the assessments made on the 438 Bills of Entry were provisional and held that any refund could be claimed only after finalisation of the assessments. Accordingly, the lower appellate authority set aside the order of the original authority and directed the latter to finalise the provisional assessments for the periods 1987-1988 to 1991-1992, after giving the assessee an opportunity of being heard. It also held that, upon finalisation of the assessments, the appellants would have to claim refund in terms of the provisions of Section 27 of the Customs Act. This decision of the lower appellate authority is under challenge in Appeal No. C/66/2003 before us. 5.A third claim of the appellants was for an amount of Rs. 21,02,459/- covering 440 Bills of Entry relating to imports made through Chennai Airport from 1986-1987 to 1990-1991. In adjudication of this claim, the original authority found that the assessments on the Bills of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) or the Tribunal. The customs authorities were liable to refund the amounts in pursuance of the Tribunal's decision dated 25-8-2000 affirmed by the Supreme Court. The above amounts were not in the nature of duty of customs to attract Section 27 of the Customs Act and were only to be returned to the appellants pursuant to the Final Order of the Tribunal accepting the transaction value as the basis for assessment of the goods. Further, the above amounts were paid under protest and hence not subject to unjust enrichment provisions as held by the Supreme Court in Shinkhai Synthetics and Chemicals Pvt. Ltd. v. CCE, 2002 (143) E.L.T. 17 (S.C.) and by the Tribunal in the case of Tecil Chemicals and Hydropower Ltd. v. CCE, 2003 (151) E.L.T. 136. The instructions issued by the CBEC in 2002 in relation to deposits made under Section 129E of the Customs Act and Section 35F of the Central Excise Act during the pendency of appeals were binding on all officers subordinate to the Board and the lower appellate authority should have applied the Board's instructions to the above deposits and ordered refund thereof. 7.Heard both sides. Ld. Counsel reiterated the above grounds and also submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excess, Section 27 contemplated filing of formal claim for refund. This requirement under Section 27 was evident from Explanation II to sub-section (1) thereof. Therefore, according to learned SDR, there was no reason to interfere with the orders passed by the Commissioner (Appeals). 9.We have carefully considered the submissions and examined the case law cited by both sides. Valuation of the goods imported by the appellants from 1986-1987 onwards was finally settled in the Tribunal's Final Order dated 25-8-2000 which has been upheld by the Supreme Court. Accordingly, all assessments in question required to be finalised on the basis of the transaction value as indicated in the relevant invoices. The question to be considered in these appeals is whether the appellants' refund claims in respect of the extra duty paid on the 8.3% loaded value of the goods imported by them from 1986-1987 onwards are liable to be allowed without invoking the doctrine of unjust enrichment. It has been argued that the above payments made by the appellants were not in the nature of duty of customs but only security deposits made to serve the purpose of Section 129E of the Customs Act during the pendency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proper officer the duty demanded or the penalty levied. The proviso has conferred discretion on the Commissioner (Appeals) or the Appellate Tribunal, as the case may be, to dispense with deposit in a case where it is shown that such deposit would cause undue hardship to the appellant. It is clear from the above provision that a deposit under Section 129E is made for the specific purpose of maintaining an appeal before the Commissioner (Appeals) or the Appellate Tribunal, as the case may be. In the instant case, the appellants have not been able to show that the deposits in question were made for any such purpose. What appears from the record is that the deposits were made by the appellants from time to time when their imports from Caterpillars were cleared under the respective Bills of Entry. None of those deposits were made in terms of any order of the Commissioner (Appeals) or the Tribunal, nor with reference to any appeal pending with any of these appellate authorities. We, therefore, reject the appellants' contention that the deposits in question are not in the nature of duty of customs but only security deposits under Section 129E liable to be refunded without reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the above question stood finally settled on 11-4-2001. Therefore, on the basis of the lower appellate authority's finding of fact that the above deposits represented provisional payments of duty till final decision on the merits of loading of value, we hold that all the assessments were provisional in nature. This state of affairs was also noticed by the Tribunal in its order dated 25-8-2000, wherein the authorities were directed to finalise the assessments on the basis of transaction value shown in the relevant invoices. It was incumbent upon the original authority to finalise the provisional assessments in pursuance of the Tribunal's order dated 25-8-2000. Instead of doing so, the original authority, in respect of the 238 Bills of Entry, took the stand that the original assessments made on all those Bills of Entry were final assessments under Section 46 of the Customs Act and rejected the refund claims of the assessee as time-barred. In the appeal filed against the decision of the original authority, the first appellate authority considered only one issue i.e., whether the refund claims were time-barred under Section 27 of the Customs Act. However, in the context of decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts up to 1991, which were found to be provisional, were finalised under Section 18(2) of the Customs Act, whereupon an amount of Rs. 14,91,488/- was found to be available for refund. However, refund claims were required to be filed within six months under Section 27 of the Act along with documents to rule out the bar of unjust enrichment. For the period from 6-4-1994 onwards, the original authority recorded a finding that the assessments made on the relevant Bills of Entry were not provisional and, therefore, the question of finalisation of assessment did not arise. In this connection, the assessee was directed to file refund application along with documentary proof of payments of duty under protest, if any. Before the Commissioner (Appeals), the issue that arose in respect of the periods 1986-1987 to 1990-91 was whether refund required to be claimed under Section 27 of the Customs Act. This question was answered by her in the affirmative. We uphold this view of the lower appellate authority for reasons already recorded. As regards the Bills of Entry filed for the period from 6-4-94 onwards, the Commissioner (Appeals) held that the Bills of Entry had been finally assessed and the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants from Caterpillars through Chennai Seaport shall be finally assessed by the original authority in accordance with law and the principles of natural justice, whereupon it will be open to the appellants to file a claim for refund within the period of limitation prescribed under Section 27 of the Customs Act. (b) As directed by the Commissioner (Appeals), the original authority shall finalise the provisional assessments in respect of the 438 Bills of Entry for the periods 1987-1988 to 1991-1992 in accordance with law and the principles of natural justice, whereupon it will be open to the assessee to file refund claim within the period of limitation prescribed under Section 27 of the Act. (c) In respect of the Bills of Entry covering imports through Chennai Airport during the periods 1986-1987 to 1990-1991, provisional assessments of which have already been finalised by the original authority, the assessee shall claim refund of duty under Section 27 of the Customs Act, while, in respect of the Bills of Entry covering imports made through the Airport from 6-4-1994 onwards, the original authority shall finalise the provisional assessments in accordance with law and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
