Custom, Excise & Service Tax Tribunal
Hero Cycle Ltd vs Commissioner Of Customs (Import), ... on 15 April, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI APPEAL NO. C/425/09 (Arising out of Order-in-Appeal No. 04 & 08 (ADC/GR.VB)/2009 (JNCH) 14.01.2009 passed by the Commissioner of Customs (Appeals) Mumbai-II, Sheva, JNCH For approval and signature: Honble Shri 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 :
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?
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Hero Cycle Ltd.
:
Appellants
VS
Commissioner of Customs (Import), Nhava Sheva
Respondents
Appearance
Shri J.H. Motwqni, Advocate for Appellants
Shri Jhamman Singh, JDR Authorized Representative
CORAM:
Shri Ashok Jindal, Member (Judicial)
Date of decision : 15/4/2010
ORDER NO.
Per : Ashok Jindal, Member (Judicial)
The appellant filed this appeal against the rejection of their refund claim.
2. The facts of that appellant filed 5 bills of entry wherein by mistake they failed to mention the exemption notification available to them and they paid the duty and the adjudicating authority also did not give the benefit of the exemption notification. On reliance that the appellants are entitled for the exemption under the said notification, they filed refund claim and same was rejected by the Dy Commissioner of Customs. Following the case of Priya Blue holding that the assessment order of the Bill of Entry have not been challenged, refund cannot be sanctioned, same was confirmed by the lower appellant authority. Aggrieved from the same the appellant is before me.
3. Shri J.H. Motwani learned Advocate appeared on behalf of the appellant and submitted that the appellant has challenged the order of the assessment of bills of entry in question before the Honble High Court in Writ Petition No.2838/09 wherein the Honble High Court of Bombay has held that We will have to issue direction to the respondent to amend the original order to assessment. In so far as the claim for refund is concerned that would only arise after amended. The bills of entry in question are to be reassessed by the adjudicating authority and after adjudication the appellant shall be entitled to file the refund claim. He prayed that after setting aside the impugned order the appeal may be disposed of as infructuous in the light of the order of the Honble High Court in Writ Petition No.2838.
4. Heard.
5. I find that in the instant case the refund claim was rejected. Following the Priya Blue case holding that the assessment order in the Bills of Entry in question has not been challenged, refund claim cannot be entertained. But as per the directions of the Honble High Court in Writ Petition No.2838/09, the Honble High Court has directed the Bill of Entry in question to be re-assessed. Accordingly, the assessment order in the bills of entry passed originally has become infructuous and any refund claim filed in consequent to original assessment of the bills of entry in question has also become infructuous. In that situation I do agree with the contention of the learned Advocate. Accordingly, after setting aside the impugned order, I dispose of the appeal as infurcutous in the light of the judgment passed by the Honble High Court of Bombay in Writ Petition No. 2838/09.
(Pronounced in court) (Ashok Jindal) Member (Judicial) Sm 3