Custom, Excise & Service Tax Tribunal
M/S. Ranbaxy Laboratories Ltd vs Commissioner Of Customs, Nhava Sheva on 15 April, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. APPEAL NO.C/525 to 529/07 (Arising out of Order-in-Appeal No. 20(CRC)2007(JNCH) dt. 28.3.2007 passed by the Commissioner of Central Excise (Appeals) Nhava Sheva, Raigad. For approval and signature: Honble Shri M. V. Ravindran, Member (Judicial) ============================================================
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M/s. Ranbaxy Laboratories Ltd.
:
Appellant
VS
Commissioner of Customs, Nhava Sheva
Respondent
Appearance
Shri Bharat Raichandani, Advocate for Appellant
Shri S.N. Prasad, Authorized Representative (SDR)
CORAM:
Shri M. V. Ravindran, Member (Judicial)
Date of hearing : 15/4/2008
Date of decision :
ORDER NO.
Per : Shri M. V. Ravindran, Member (Judicial)
All these appeals are filed against Order-in-Appeal No. 20(CRC)2007(JNCH) dt. 28.3.2007 vide which the Ld. Commissioner (Appeals) upheld the order of the adjudicating authority that rejected the refund claim filed by the appellant.
2. The relevant fact that arise for consideration are the appellant herein imported Cyclohexane and filed various bills of entry. The bills of entries filed sought to be cleared the goods under Chapter Heading No. 29299000 of the Customs Tariff and were assessable to duty. The said bills of entry were assessed when the goods were cleared after second check examination. Appellant paid the assessed duty by TR 6 Challan. Subsequent to the clearance of goods it was noticed by the appellant that the product Cyclohexane was eligible concessional duty in terms of Notification No. 21/2002-Cus dt. 1.3.2002 at serial No.490 and the basic rate of duty applicable was 5% instead of 12.5% as levied at the time of assessment, hence filed a refund claim for excess duty paid The said refund claim was not entertained and returned by the adjudicating authority. On an appeal filed against such rejection, the Ld. Commissioner (Appeals) also upheld the contentions of the lower authority. Hence this appeal.
3. The Ld. Counsel appearing on behalf of the appellant submits that the appellants filed a refund claim for the excess amount of the duty paid. The said claim was returned by the Assistant Commissioner of Customs, on the ground that the refund cannot be made without challenging the assessment in the bill of entry. It is his submission that the effective rate of duty of 5% on the goods imported by the appellant, is unconditional by Notification No. 21/2002-Cus and based on the description of the goods imported into India. It is his submission that irrespective of any other factors the benefit of notification is shall be available to the appellant and should be given. It is his submission that the Ld. Commissioner (Appeals) has not considered all these submission made before him. It is his further submission that Section 149 of the Customs Act, and provides for amendment of the document. It his submission that the appellants case falls under covered under Section 149 of the Customs Act. He relies upon the followed decisions.
[1] Senka Carbon Pvt. Ltd. Vs. Commissioner of Customs, Chennai [2007 (216) E.L.T. 397 (Tri.Chennai)] [2] L.P.Rings Ltd. Vs. Commissioner of Customs (AIR), Chennai [2006 (202) E.L.T.61 (Tri.-Chennai)] [3] Brakes India Ltd. Vs. Commissioner of Customs, Chennai [2008 (221) E.L.T. 300 (Tri.-Chennai)] [4] G.s.Metalica Vs. Commissioner of Customs (Import), Nhava Sheva [2007 (217) E.L.T. 466 (Tri.-Mumbai)]
4. The Ld. SDR on the other hand would submit that the appellant herein had not challenged the final assessment made on the bills of entry. It is his submission that the refund claim has been rightly rejected by the original authority and confirmed by the appellate authority. He submits that the decision of the Honble Supreme Court in the case of Priya Blue Industries Vs. CCE, [2002 (172) ELT (SC)] and the decision of the Larger Bench of the Tribunal in the case of Commissioner of Customs (IMP.), Nhava Sheva Vs. Eurotex Indus. & Exports Ltd. as reported at [2007(216) E.L.T. 137 (Tri.-LB)] will cover the case against the appellant.
5. Considered the submissions made at length by sides and perused the records. It is undisputed that the appellant had filed bills of entry for the clearance of the product Cyclohexane without claiming benefit of Notification No. 21/2002-Cus. It is to be noted that the said notification was in existence from 1.3.2002 and it cannot be said that the appellant, being in the organized sector was not aware of the said notification. At the same time when the bills of entry were filed, the applicants, chose not to claim the benefits of notifications No.21/2002-cus, to the reasons best known to them. The question whether the exemption was unconditional and ought to have been given by the Revenue authorities to the appellants is not the question. It is the fact and undisputed, that the appellant did not challenge the assessment made on the bill of entry. In the absence of any challenge to assessed bills of entry, I am of the considered view the judgment of the Honble Supreme Court in the case of Priya Blue Industries (Supra) will squarely cover the issue against the appellant. I also note that in an identical issue in the case of Commissioner of Customs (Import) Mumbai III Vs. M/s. S. Kumar Nationwide Ltd. in(Appeal No. C/777/07) in final order No. A/194/08/WZB/SMB/C-II dt.18.1.08 held as under:-
On perusal of the records, it is seen that the respondent had, undisputedly filed the bills of entry for the clearance of the goods without claiming the benefit of Notification No. 20/06 (Serial No. 50) and Notification No. 69/04 (Serial No.1) respectively. The said bills of entry were assessed finally by the adjudicating authority. After the final assessment of the said bills of entry, the respondent discharged the duty liability and cleared the goods. It can be seen that the respondent had taken the route of filing the refund application for the amount of excess duty paid by them without challenging the assessment of bills of entries. I find that the issue in this case is squarely covered by the judgment of the Honble Supreme court in the case of Priya Blue Industries Ltd. (supra). The decisions relied upon the Ld. Counsel for the respondent will be of no help to him as those were given by the Tribunal in respect of the clerical/arithmetical error noticed on the bills of entires as regards the prevailing rate of exchange, erroneous inclusion of freight charges twice erroneous declaration of transaction value and multiplying unit price erroneously by net weight. I find that the ratio involved in this case is factually different, than in the cases as relied upon by the Ld. Counsel. Since the issue involved in this case is not regarding the correction of the error while assessing the bill of entry, I am of the view that the judgment of the Honble Supreme Court in the case of Priya Blue Industries Ltd. (supra) will squarely apply and the impugned order holding otherwise is not correct. Accordingly, the impugned order which sanctioned the refund claim of the respondent is set aside and the appeal filed by the Revenue is allowed.
I also find that the Larger Bench of the Tribunal in the case of Eurotex Indus. & Exports Ltd. (Supra) settled the law which is as under:-
We are not convinced by the plea of the respondent that when an assessment is made in accordance with the claim made by the assessee, such an assessement cannot be challenged by him, as he cannot be said to be aggrieved by the order of the assessment, as it is the job of the proper officer to pass a correct assessment order irrespective of the claim made by the assessee and the grievance is from the assessment order and not from his claim especially when the Apex Court in the two decisions in the case of Priya Blue and Flock India, has categorically held that a refund is not maintainable unless and until the assessment order in pursuance of which the duty was paid has not been challenged.
6. Accordingly, in my considered view, the decision of the Honble Supreme Court in the case of Priya Blue Industries Ltd. (Supra) and Larger Bench decision in the case of Eurotex Indus.& Exports Ltd. will cover the issue against the appellant. Consequently, the appeals filed by the appellant are rejected.
(Pronounced in court on --------------------) (M. V. Ravindran) Member (Judicial) Sm 5