Custom, Excise & Service Tax Tribunal
M/S. Konkan Synthetics Fibres vs Commissioner Of Customs (Import), Nch, ... on 25 August, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. C/1421/05 (Arising out of Order-in-Appeal No. 474/2005 MCH/AC/Gr.VA/05 dt. 4/10/2005 passed by the Commissioner of Customs (Appeals), Mumbai-I) For approval and signature: Honble Shri Ramesh Nair, Member (Judicial) 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 : No
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?
=======================================================
M/s. Konkan Synthetics Fibres
:
Appellant
VS
Commissioner of Customs (Import), NCH, Mumbai-I
:
Respondent
Appearance
Shri Prakash Shah, Advocate for Appellant
Shri M.K. Sarangi, Jt. Commr. (A.R) for respondent
CORAM:
Honble Shri Ramesh Nair, Member (Judicial)
Honble Shri Raju, Member (Technical)
Date of hearing : 25/08/2016
Date of pronounced : 21/12/2016
ORDER NO.
Per : Ramesh Nair
The fact of the case is that the appellant have imported two machines one through Bill of Entry No. 207814 dt. 25.9.2001 and the second one is vide Bill of Entry No. 212675 dt. 12.10.2001. In both the Bills of Entry the exemption Notification No. 17/2001 dt. 1.3.2001 was claimed. In the first bill of entry, matter was adjudicated vide Order-in-Original No.S/26/553/2001 VA dt. 09.10.2001, wherein the exemption notification was denied. This matter traveled upto Tribunal and the Tribunal has allowed the exemption notification by allowing the appeal of the appellant vide order No. C-I/2027-2028/WZB/2003 dt. 5.9.2003. Department challenged the Tribunals order dt. 5.9.2003 before the Honble Supreme Court through an SLP wherein the Honble Supreme Court vide order dt. 29.2.2012 upheld the order of the Tribunal, accordingly, the issue of eligibility of Notification attained finality. Consequently, the appellant filed refund claim on first machine and the same was sanctioned. As regard, the second machine the appellant on 12.10.2001 on the date of filing of Bill of Entry paid the Customs duty under protest and a letter dt. 12.10.2001 to that effect was also filed with the Dy. Commissioner. Thereafter on 25.10.2001 customs authority issued an examination order. However despite written request of the appellant no assessment order was issued. In view of the CESTAT order dt.5.9.2003 in respect of the second bill of entry appellant filed a refund claim in respect of the second machine also. The refund was rejected vide Order-in-Original No. 462/VA/JS/05-06 dt. 25.07.2005 on the ground that the appellant have not filed appeal against the assessed bill of entry therefore not entitled for the refund, in view of the judgment in the case of Collector of Central Excise, Kanpur Vs. Flock (India) Pvt. Ltd. 2000 (120) E.L.T. 285 (S.C.) and Priya Blue Industries Ltd. Vs. Commissioner of Customs (Preventive) 2004 (172) ELT 145 (S.C.). Being aggrieved by the order of the Assistant Commissioner, the appellant filed appeal before the Commissioner (Appeals), who vide impugned order dt. 4.10.2005 rejected the appeal, therefore the appellant are before us.
2. Shri Prakash Shah, Ld. Counsel for the appellant submits that the lower authorities have wrongly rejected the refund claim on the ground of non filing of appeal against the assessed bill of entry. He submits that as far as the second bill of entry is concern the appellant have paid the duty under protest therefore they have protested the denial of exemption. Moreover, the issue on merit was not in dispute in case of second bill of entry for the reason that identical issue in the appellants own case has attained finality upto the Honble Supreme Court. Therefore there is no reason for again filing an appeal before the Commissioner (Appeals) on the issue which had been settled by the Honble Supreme Court. For this reason the contention of the lower authority that the refund is not maintainable in the light of judgment in the case of Flock (India) Pvt. Ltd. (supra) and Priya Blue Industries Ltd. (supra) is not correct. Alternatively, he submits that the right from the date of filing the bill of entry the appellant have paid the duty under protest and filed a letter to that effect. Once the duty was paid under protest, the assessing authority is under obligation to pass a speaking order on the assessment of bill of entry, which the assessing officer has failed to do so. In support of his submission he placed reliance on the following judgments:
(i) Commissioner of Cus. (Import), Mumbai Vs. Konkan Synthetic Fibres 2012 (278) E.L.T. 37 (S.C.)
(ii) C.G. Elin Power Systems Ltd. Vs. Commr. of Cus. Sahar Airport, Mumbai 2012 (277) E.L.T. 174 (Tri.-Mumbai)
(iii) Hindustan Petroleum Corpn. Ltd. Vs. Commr. of Cus. (Imports), Mumbai 2015 (328) E.L.T. 490 (Tri.-Mumbai)
(iv) Styleman Vs. Commissioner of Customs, Chennai 2006 (198) E.L.T. 559 (Tri.-Chennai)
(v) Hero Cycles Ltd. Vs. Union of India 2009 (240) E.L.T. 490 (Bom.)
(vi) Priya Blue Industries Ltd. Vs. Commissioner 2004 (170) E.L.T. A308 (S.C.)]
(vii) Priya Blue Industries Ltd. Vs. Commissioner of Customs (Preventive) 2004 (172) ELT 145 (S.C.)
(viii) Collector of Central Excise, Kanpur Vs. Flock (India) Pvt. Ltd.
2000 (120) E.L.T. 285 (S.C.)
(ix) Karan Associates Vs. Commissioner of Customs (Import), Mumbai 2009 (236) E.L.T. 23 (Bom.)
(x) Vijal Marine Services Vs. Commissioner of Cus. & C. Ex., Goa 2016 (337) E.L.T. 335 (Bom.)
(xi) Bharti Sons Vs. Commissioner of Central Excise, Amritsar 2006 (206) E.L.T. 932 (Tri.-Del.)
(xii) Commr. of C.Ex., Gurgaon Vs. Alcatel Modi Network System Ltd.
2008 (221) E.L.T. 358 (P & H)
(xiii) Auxichem Vs. Commissioner of Central Excise, Belapur `2015 (330) E.L.T. 721 (Tri.-Mumbai)
(xiv) MGM Metallisers Ltd. Vs. Commissioner of Central Excise, Vapi 2013 (295) E.L.T. 451 (Tri.Ahmd.)
(xv) Commissioner of Customs, Chennai Vs. R.R. Trading Pvt. Ltd.
2003 (160) E.L.T. 591 (Tri.-Chennai) (xvi) Commissioner of Central Excise, Aurangabad Vs. Klasspak Pvt. Ltd.
2005 (179) E.L.T. 365 (Tri.-Mumbai) (xvii) Commissioner of Central Excise, Jaipur Vs. Saharia Wire Industries 2002 (141) E.L.T. 830 (Tri.-Del.) (xviii) Motwane (P) Ltd. Vs. Commissioner of Central Excise, Bangalore 2002 (140) E.L.T. 499 (Tri.-Bang.) (xix) General Engg. Work Vs. Commissioner of C.Ex., Jaipur 1999 (111) ELT (Tribunal) (xx) Asha Handicrafts Vs. Commissioner of Central Excise, Mumbai 2004 (177) E.L.T. 303 (Tri.-Mumbai) (xxi) Kota Oxygen Vs. Commissioner of Central Excise, Jaipur 2001 (130) E.L.T. 889 (Tri.-Del.) (xxii) Commissioner of C. Ex., Chennai-II Vs. Electro Steel Castings Ltd.
2014 (299) E.L.T. 305 (Mad.) (xxiii) Shasun Chemicals & Drugs Ltd. Vs. Commissioner of Cus. Chennai 2009 (247) ELT 371 (Tri.-Chennai) He submits that in the peculiar facts of the present case, the ratio of the judgment of Priya Blue Industries Ltd. (supra) and Flock India Pvt. Ltd. (supra) is not applicable.
3. On the other hand, Shri M.K. Sarangi, Ld. Jt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that the bill of entry in the present case was assessed finally, therefore, the only option left with the appellant was to challenge the assessment of bill of entry, otherwise the assessment attained finality. Accordingly no refund arises out of the assessed bill of entry unless until the assessment of bill of entry is challenged by way of filing the appeal before the Commissioner. In support of his submission he placed reliance on the following judgments:
(i) Commr. of Cus. (Imp.), Nhava Sheva Vs. Eurotex Indus. & Exports Ltd.
2007 (216) E.L.T. 137 (Tri.-LB)
(ii) Commissioner of Customs (I), Nhava sheva Vs. Rajasthan Syntex Ltd.
2010 (261) E.L.T. 1048 (Tri.-Mumbai)
(iii) Nicholas Piramal India Ltd. Vs. Commissioner of Customs Airport, Mumbai 2014-TIOL-1716-CESTAT-MUM
(iv) Karan Associates Vs. Commissioner of Customs (Import), Mumbai 2009 (236) E.L.T. 23 (Bom.)
(v) Maharashtra Cylinders Pvt. Ltd. Vs. CESTAT, Mumbai 2010 (259) E.L.T. 369 (Bom.)
(vi) Tecumseh Products India Ltd. Vs. Commr. of Cus. (Import), Mumbai 2010 (258) E.L.T. 102 (Tri.- Mumbai)
(vii) Commissioner of Customs (Appeals) Vs. ACE Designers 2015 (329) E.L.T. 109 (Mad.)
(viii) Vodafone India Ltd. Vs. Commissioner of Central Excise, Mumbai-II 2015 (324) E.L.T. 434 (Bom.)
(ix) Max India Limited Vs. Commissioner of Customs (ICD), New Delhi 2005 (192) E.L.T. 246 (Tri.- Del.)
(xi) Raymond Ltd. Vs. Commissioner of Customs (Appeals), Mumbai 2016-TIOL-21-CESTAT-MUM
4. We have carefully considered the submissions made by both the sides, we find that the appellant right from filing of bill of entry have protested the denial of exemption notification and accordingly paid the duty under protest. However, the assessing authority has not passed any speaking order in connection with assessment of bill of entry. In our view, once the appellant has protested the matter the assessing officer is duty bound to pass a speaking order on the merit of the issue therefore before deciding the refund claim the assessing officer was supposed to pass a speaking order on the assessment of bill of entry. The appellants had made a specific request for an orders of assessment vide their letter dt. 12.10.2001. Since no speaking order was passed the matter of refund in the present case cannot be concluded. In this fact, we are of the view that the adjudicating authority must pass a speaking order thereafter process the refund application of the appellant. Our view is supported by the Co-ordinate Bench decision of this Tribunal in the case of C.G. Elin Power Systems Ltd. (supra). We therefore set aside the impugned order and remand the matter to the original adjudicating authority with a direction to pass a speaking order on the assessment of bill of entry, accordingly the refund matter should be reprocessed. The matter being very old of 2001, the adjudicating authority should dispose of the matter within three months from the date of this order. Needless to say that the appellant shall be given sufficient opportunity of personal hearing and for filing additional documents related to this case, if any required. The appeal is allowed by way of remand to the adjudicating authority in the above terms.
(Pronounced in court on 21/12/2016)
(Raju)
Member (Technical)
(Ramesh Nair)
Member (Judicial)
SM.
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Appeal No. C/1421/05