Custom, Excise & Service Tax Tribunal
Ruchi Soya Industries Ltd vs Commissioner Of Customs (Acc & Import), ... on 5 October, 2012
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. C/307/12
(Arising out Order-in-Appeal No. 14/Mumbai-III/2012 dated 6.2.2012 passed by the Commissioner of Customs (Appeals), Mumbai III)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Ruchi Soya Industries Ltd.
Appellant
Vs.
Commissioner of Customs (ACC & Import), Mumbai
Respondent
Appearance:
Shri R.C. Chaure, Advocate for the appellant Shri A.K. Prabhakar, Suptd. (AR) for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Date of hearing : 05.10.2012 Date of decision : 05.10.2012 O R D E R No:..
The appellant is in appeal against the impugned order wherein the refund claim has been rejected following the decision of Priya Blue Inds. Ltd. 2004 (172) ELT 145 and Flock (India) P. Ltd. 2000 (120) ELT 285 wherein the Hon'ble Apex Court held that without challenging the assessment, refund claim cannot be filed.
2. The facts of the case are that the appellant procured one consignment of Germinated Oil Palm Seed for home consumption. The goods were classifiable under CTH 12092990 which were exempted under Notification 21/2002 dated 1.3.2002. While filing bill of entry appellant did not claim exemption under Notification 21/02 and the assessing officer assessed the bill of entry. Later on they realised that they are entitled for exemption under Notification 21/02 and they filed refund claim. The same was rejected on the premise that as the appellant has not challenged the assessment of bill of entry, therefore they are not entitled for refund claim.
3. The ld. counsel for the appellant appeared and submitted that in this case by mistake appellant could not claim exemption under Notification 21/02. It is admitted the appellant did not claim Notification 21/02 but he has complied with all the condition of Notification at the time of filing of bill of entry. It is the duty of the assessing officer to assess the goods properly. In this circumstances, when he realised that they paid duty which was not warranted, therefore they are entitled to refund claim as held by Aman Medical Products 2009-TIOL-566-HC-Del.
4. On the other hand, the ld. AR reiterates the impugned order and contended that as assessment was done and the Notification was conditional, the appellant did not claim the exemption under 21/02, therefore, they are not entitled for refund claim without challenging the assessment.
5. Heard both sides.
6. It is not disputed at the time of filing of bill of entry the appellant has complied with Condition of Notification 21/02. Therefore, it is duty of the assessing officer to give benefit of exemption under Notification 21/02 as the assessing officer failed to assess the goods properly. In this case the appellant are entitled to claim refund without challenging the assessment of bill of entry as held by the Tribunal in the case of Sasa Goa Ltd. 2010-TIOL-1729-MUM wherein this Tribunal has held that when the exemption is available it is the duty of the assessing officer to give the exemption to the assessee. As the assessing officer failed to give the exemption, therefore appellant are entitled to claim refund without challenging the bill of entry and the facts of this case are distinguishable from the decision in the case of Flock India and Priya Blue. With these observations, I hold those appellants are entitled to refund claim. Accordingly, the impugned order is set aside. Appeal is allowed with consequential relief.
(Dictated in Court) (Ashok Jindal) Member (Judicial) SR 4