Custom, Excise & Service Tax Tribunal
M/S Oil And Natural Gas Corporation Ltd vs Commissioner Of Customs (Import), ... on 2 September, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. C/85973/16 (Arising out of Order-in-Appeal No. MUM-CUSTM-SMP-222/2015-16 dated 15.12.2015 passed by the Commissioner of Customs (Appeals), Mumbai-I). For approval and signature: Honble Shri Raju, Member (Technical) ======================================================
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 : Seen
of the order?
4. Whether order is to be circulated to the Departmental : Yes
authorities?
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M/s Oil and Natural Gas Corporation Ltd.
Appellant
Vs.
Commissioner of Customs (Import), Mumbai
Respondent
Appearance:
Shri Y.K. Sharma, Consultant
for Appellant
Shri V.R. Reddy, AC (AR)
for Respondent
CORAM:
SHRI RAJU, MEMBER (TECHNICAL)
Date of Hearing: 23.08.2016
Date of Decision: 02.09.2016
ORDER NO.
Per: Raju
This appeal has been filed by the appellant, M/s Oil and Natural Gas Corporation Ltd., against rejection of refund claim filed by them. The refund claim arose as a result of variation in the freight amount paid by the appellant to the transporter for the imported consignment. Consequently, the CIF value of the imported goods changed. The refund claim has been rejected by the lower authorities relying on the decision of the Hon'ble Supreme Court in the case of Priya Blue Industries 2004 (172) ELT 145 (SC).
2. Learned Counsel for the appellant relied on the decision of Hon'ble High Court of Delhi in the case of Aman Medical Products Ltd. 2010 (250) ELT 30 (Del). In the said decision Hon'ble High Court of Delhi has distinguished the decision of Hon'ble Supreme Court in the case of Flock (India) Pvt. Ltd. 2000 (120) ELT 285 (SC) and Priya Blue Industries Ltd. (supra) by observing as follows: -
5.?The Tribunal has referred to the cases of CCE, Kanpur v. Flock (India) Pvt. Ltd. [2000 (120) E.L.T. 285] and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive), 2004 (172) E.L.T. 145 (S.C.). In both these cases, referred to by the Tribunal there was an assessment order which was passed and consequently it was held that where an adjudicating authority passed an order which is appealable and the party did not chose to exercise the statutory right of 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 adjudicating authority had committed an error in passing his order. These judgments will therefore not apply when there is no assessment order on dispute/contest, like as is in the facts of the present case. Learned Counsel argued that in the instant case also, there has been no assessment and only Bill of Entry has been assessed.
3. Learned AR relied on the impugned order.
4. I have gone through the rival submissions. I find that the decision of Hon'ble Supreme Court in the case of Priya Blue Industries (supra) was passed in the following facts: -
2.? The facts necessary for the purposes of this Order are as follows :
The Petitioners had imported a ship for breaking purposes. They filed a Bill of Entry. The amount of duty payable was assessed. The Petitioners paid the duty under protest. They then filed a Claim for refund of Rs. 79,64,648/- on the ground that duty had been wrongly levied. Their refund was rejected on 30th August, 2000. The Appeal filed by them was rejected on 31st October, 2001. The further Appeal filed before the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) was dismissed by the Tribunal on 28th May, 2002. The Tribunal followed the judgment of this Court in the case of Collector of Central Excise v. Flock (India) Pvt. Ltd. reported in (2000) 6 SCC 650. The Tribunal held that as no Appeal had been filed against the Assessment Order the refund claim was not maintainable. The Civil Appeal filed before this Court was dismissed by our Order dated 14th November, 2003. From the above facts, it would be clear that the decision is applicable to the assessment where Bill of Entry has been assessed without passing speaking order just like in case of Aman Medical Products (supra). I find that the Commissioner (Appeals) has relied on the decision of Hon'ble Apex Court in the case of Priya Blue Industries (supra) to reject the refund claim and that decision cannot be faulted. The appeal is, therefore, dismissed.
(Pronounced in Court on 02.09.2016) (Raju) Member (Technical) Sinha 1 Appeal No. C/85973/16