Customs, Excise and Gold Tribunal - Delhi
Airports Authority Of India vs Cc on 28 September, 2004
Equivalent citations: 2004(117)ECR166(TRI.-DELHI), 2005(192)ELT179(TRI-DEL)
ORDER Appeals dismissed. V.K. Agrawal, Member (J)
1. The common issue involved in these two appeals is whether a claim for refund of customs duty can be filed without challenging the assessment order made on Bill of Entry.
2. Shri J.M. Sharma, learned Consultant submitted that Airports Authority of India imported one runway road marking machine under Bill of Entry dated 28.11.1996 which was cleared by them on payment of duty as per rate prescribed in the Customs Tariff; that Notification No. 36/96-Cus dated 23.7.1996 (Serial No. 143) exempts navigation, communication, air traffic and landing equipments from payment of Customs duty in excess of 25% and full additional Customs duty provided Airport Authority of India produces a certificate from the Directorate General of Civil Aviation that such equipment is required to be used in the modernization of Airport facilities; that the Directorate General of Civil Aviation had issued a certificate dated 19.11.1996 and accordingly appellants were eligible for the benefit of the exemption notification; that accordingly they filed a refund claim on 20.2.1997 under Section 27 of the Customs Act; that the Deputy Commissioner rejected the refund claim under Order-in-Original No. 85/2000 dated 19.9.2000 on the ground that they had not replied to the deficiency memo and failed to submit evidence regarding unjust enrichment, etc.; that the Commissioner (Appeals) under the Order-in-Appeal No. 134/03 dated 18.5.2003 has rejected their appeal on the ground that there is no evidence to indicate that the duty was deposited by them under protest and that no appeal has been filed against the assessment on the bill of entry; that the Commissioner (Appeals) has relied upon the decisions in the cases of Kopran Limited v. CC and CCE v. Flock (India) Pvt. Limited . The learned Consultant further submitted that the decision in the case of Flock (India) is not applicable to the facts of the present matter inasmuch as in the case of Flock (India) the Adjudicating authority had passed an adjudication order determining the classification of goods differently than what was claimed by the assessee and as they had not challenged the determination of classification, the Supreme Court has held that order cannot be questioned merely by filing a refund claim; that in the present matter there was no his between the appellants and the Department at the time of assessment of Bill of Entry and no appealable order was passed as none was required to be passed as the assessment was done by the Department as claimed by the appellants in Bill of Entry; that the Larger Bench of the Tribunal in the case of Faxtel Systems (India) Pvt. Ltd. v. CC 2004 (169) ELT 265 (T) : 2004 (115) ECR 38 (T-LB) has not expressed "any view on the contention taken by the appellant that if it is only a mere assessment of Bill of Entry without a his involved, the ratio of Flock (India) will not be applicable". He mentioned that in view of the observation of the Larger Bench of the Tribunal the issue in the present matter is distinguished.
4. The learned Consultant has relied upon the decision in the case of Bengal Tools Ltd. v. CC, Calcutta 2003 (56) RLT 331 2003 (109) ECR 252 (T) wherein the Tribunal after noting the Supreme Court's decision in the case of Flock (India) and Central Board of Excise and Customs instructions contained in Customs Manual of Instructions has held that an importer can claim refund of excess duty paid without challenging the assessment of Bill of Entry; that similarly the Tribunal in the case of Hindustan Petroleum Corporation Limited v. CC, Chennai 2003 (56) ELT 792 and Tata Consultancy Services v. CC, Mumbai 2003 (56) RLT 832 has held that refund claim is entertainable even if the assessment of Bill of Entry has not been challenged; that the decision in the case of Kopran Limited cannot be relied upon as these decisions were not brought to the notice of the Bench and also the Board instruction which is binding on the Departmental officials.
5. Shri K.K. Anand, learned Advocate, appearing on behalf of M/s Punjab Health System Corporation Limited, adopted the arguments made by Shri J.M. Sharma, learned Consultant. Further, he relied upon the decision in the case of Indian Oils Corporation Limited v. Chief Inspector of Factories in support of his contention that the Appellant Corporation is a Government for the purpose of time limit specified in Section 27 of the Customs Act for filing the refund claim.
6. Countering the arguments, Shri Kumar Santosh, learned SDR, and Shri Viraj Gupta, learned JDR, submitted that the assessment made on Bill of Entry is an appealable order, that once the assessment on Bill of Entry has been made and the same has not been challenged by the assessee, it is not open to them to challenge the said assessment order by filing a refund claim; that the Supreme Court in the case of Flock (India)(supra) has clearly held "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 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. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant". The learned SDR also mention that following the decision in the case of Flock (India), the Appellate Tribunal in the case of Kopran Limited has held that "order of assessment on a Bill of Entry is appealable order against which appeal is required to be filed if a party is aggrieved by the same. As no appeal has been filed the appellants cannot claim refund"; that similar views were expressed by the Tribunal in the case of M/s HCL Perot System Limited vide Final Order No, 213/2003-NB-B dated 10.3.2003 that the appeal filed by the assessee against the said decision has been dismissed by the Supreme Court by observing "We see no reason to interfere" as reported in 2004 (165) BLT A77. The learned SDR also submitted that Punjab Health Systems Corporation Limited is not Government as it is a Corporation. Reliance has been placed on the decision in the case of Bihar State Industrial Development Corporation Limited v. Collector of Customs 1991 (51) 599 (T) : 1993 (46) ECR 515 (Cegat) and Vishakhapatnam Port Trust v. Collector of Customs .
7. We have considered the submissions of both the sides. It is not in dispute that the goods imported by both the appellants were duly assessed by the proper officer and the same were cleared after payment of duty. It is also not in dispute that the assessment ordered by the proper officer on the Bill of Entry has not been challenged by the appellants, The appellants have subsequently filed the refund claims claiming the benefit of exemption notification issued under the Customs Act. The similar facts were considered by the Tribunal in the case of Kopran Limited, The Tribunal in the said decision after considering the decisions of the Tribunal in the case of Khemka Travels v. CC and CC, Mumbai v. Hart & Co. has held that order of assessment on a Bill of Entry is an appealable order against which appeal is required to be filed if a party is aggrieved by the same and as no appeal has been filed by them, the appellants cannot claim refund as held by the Supreme Court in the case of Flock (India)(supra). In both the decisions namely Khemka Travels and Hari & Company, this Tribunal has clearly held that customs assessment order under Bill of Entry is an appealable order, If the appellants were aggrieved that while assessing the Bills of Entry in question, the proper officer has not extended the benefit of exemption granted under Customs Notification, though not claimed by them, the right course open to them was to file appeals against those assessment orders claiming the benefit of the exemption Notification. As it is not in dispute that they have not challenged in appeal the assessment orders, it is not open to them to file refund claims claiming the benefit of exemption Notification. This is what was held by the Apex Court in the case of Flock (India) as the Supreme Court therein has 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 has committed an error in passing his order". If there was an error in passing the adjudication order "of not granting exemption under the notification", the right course available to the appellants is to file appeals before the Commissioner (Appeals). The learned SDR has also relied upon the decision of the Tribunal in the case of HCL Parot System Limited (supra) wherein the Tribunal has held that refund claim is not maintainable when the importer has not challenged the assessment order on the Bill of Entry by way of appeal, the appeal filed by the assessee has been dismissed by the Supreme Court as reported in 2004 (165) ELT A77. We also observe that the Larger Bench of the Tribunal in the case of Faxtel Systems (India) Put. Ltd, (supra) has referred to the decision of the Tribunal in the case of Super Cassettes Industries Ltd. v. CC, Kolkata 2003 (57) RLT 291 (CESTAT) wherein also the duty was paid by the appellants as per the assessment on Bill of Entry without any protest and later on they have filed refund claim on the ground that goods were entitled for concessional rate of duty in terms of Notification No. 345/86-Cus dated 16.6.1986. The Appellate Tribunal following the decision in Flock (India) has rejected their appeal as they had not challenged the order of the assessment. The appeal filed by the appellants against the said Order has been dismissed by the Supreme Court by observing that "We see no reason to interfere" as reported in 2003 (58) RLT F9, In view of the decisions being affirmed by the Supreme Court, the Refund is not admissible to the appellants as they had not challenged the assessment order. Though the Larger Bench of the Tribunal has not expressed any view on this aspect, in view of the decisions of the Supreme Court dismissing the appeals filed by the assessees, we hold that both the appellants are not eligible to refund claim as they had not challenged the assessment orders on bills of entry.
8. There is no force in the submissions of the learned Advocate appearing for M/s Punjab Health Systems Corporation Limited that they were eligible to file the refund claim for one year period as the appellant is a Government. It has been held by the Appellate Tribunal in the case of Vishakhapatnam Port Trust (supra) that Port Trust, being only a statutory body created under the Major Port Trust Act for the Administration of the port, cannot claim to be a Government within the meaning of Section 27(1)(a) of the Customs Act and the period of limitation applicable is only six months from the date of payment of duty. The similar views were expressed by the Appellate Tribunal in the case of Bihar State Industrial Development Corporation Limited (supra) wherein the Tribunal has held that "the appellants in this case may be an authority within the meaning of Article 12 of the Constitution of India, but certainly it cannot be Government. The reason is that it is only owned by the State Government and it is nothing but a statutory body. Therefore, the longer period of limitation of one year is not available to the appellant". Thus, following the ratio of these decisions, we hold that M/s Punjab Health Systems Corporation Limited is not Government and therefore the refund claim filed by them beyond the period of six months are hit by time bar stipulated under Section 27(1)(a) of the Customs Act. Accordingly, both the appeals are rejected.
(Pronounced on 28.9.2004)