Custom, Excise & Service Tax Tribunal
Arising Out Of Order-In-Appeal No. ... vs M/S Fairway Trading Company Pvt Ltd on 27 December, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No . 27208 / 2013 Application(s) Involved: C/CROSS/12/2010 in C/288/2009-SM Appeal(s) Involved: C/288/2009-SM [Arising out of Order-in-Appeal No. 01/2009(G)(D)(CUS) dated 30/01/2009 passed by the Commissioner of Customs & Central Excise(Appeals), Guntur] Commissioner of Customs, Central Excise and Service Tax - GUNTUR P.B.NO. 331...C.R.BUILDING, KANNAVARI THOTA, GUNTUR, ANDHRA PRADESH-520004 Appellant(s) Versus M/s FAIRWAY TRADING COMPANY PVT LTD, NO-1-A,6TH FLOOR, JHAVER PLAZA,MAHATMA GANDHI ROAD, CHENNAI, Respondent(s)
Appearance:
Mr. Ganesh Haavanur, A.R. For the Appellant Mr. Lakshmi Narayan, Adv For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER Date of Hearing: 27/12/2013 Date of Decision: 27/12/2013 Respondents filed a shipping bill on 31.7.2007 for export of 15,700 MTs of Iron Ore Fines in low grade to China. They declared the percentage of iron as 58.5%. The correct rate of duty applicable was Rs. 50/- per MT. However, the appellant was asked to pay duty at Rs. 300/- per MT. Even though in the authorization filed by the Committee of Commissioners, it has been stated that the duty was voluntarily paid , when the matter was being heard, the leaned counsel for the respondent drew my attention to the letter written by the respondent on the date of assessment stating that actual duty payable is less but they are paying Rs. 300/- per MT to ensure that the consignment leaves India and as per the directions of the Assistant Commissioner. Therefore the observations in the authorization that the payment was voluntary is not coming out from the facts of the case. In any case, the assessment has to be considered as provisional even though it was not specifically said to be so and on that basis he has taken a view that the stand taken by the Revenue that in the absence of challenge to the assessment, refund claim could not have been filed.
2. The facts in this case are very peculiar. The assessment is contrary to the law and the declaration filed was not accepted and subject to verification by the Revenue, higher duty was collected. That being the position, the correct procedure to be followed by the appellant was to pay duty under protest, in which case it would have meant that assessment is not final. Further, there is no procedure prescribed for payment under protest in Customs law. Therefore, the letter written by the appellant wherein they have specifically stated that they have been compelled to pay higher duty by the Customs and therefore they are paying it with an understanding that the amount will be refunded has to be treated as protest. Therefore, the refund could not have been rejected on the ground that the assessment was not challenged . Once the payment is made under protest, it means assessment also has been challenged. In such cases, either an assessment order confirming the original assessment has to be issued or the refund claim has to be considered. In any case, the appellant has the option to file an appeal against the assessment also in case the refund was rejected. In this case, the respondent did not have any grievance since the refund was sanctioned by the original authority as agreed upon between the two parties as emerging from the letter written by the party. No doubt there is no estoppel in law. At the same time, the officers of customs are also required to follow the law and the refusal to collect correct rate of duty compelling the assessee to pay higher duty itself was wrong. The correct procedure would have been to resort to provisional assessment in which case, the appellant would not have paid higher duty at all. The facts and circumstances show that the refund sanctioned by the original authority was in accordance with law and there was no need to interfere with the same by filing an appeal. Fortunately, the Commissioner (Appeals) has agreed with the lower authority in this case. Accordingly, I do not find any merit in the appeal filed by the Revenue and reject the same. Cross objections filed by the respondents also gets disposed of.
(Order dictated and pronounced in open court) B.S.V.MURTHY TECHNICAL MEMBER pnr..
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