Custom, Excise & Service Tax Tribunal
Commissioner Of Customs vs M/S. Kent Ro System Pvt.Ltd on 3 August, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Customs Appeal No. 51312 of 2016
[Arising out of Order-In-Appeal No. CC(A)/CUS/D-II/ICDPPG/54 /2016 dated 8.02.2016 passed by Commissioner of Customs (Appeals), New Delhi]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. R K Singh, Member (Technical)
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
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Whether Their Lordships wish to see the fair copy of the Order?
Seen
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Whether Order is to be circulated to the Departmental authorities?
Yes
Commissioner of Customs Appellants
New Delhi
Vs.
M/s. Kent RO System Pvt.Ltd. Respondent
Appearance:
Shri S.K Sheoram, AR for the Appellants Shri Niranjan, Advocate for the Respondent CORAM:
Hon'ble Ms Archana Wadhwa, Member (Judicial) Hon'ble Mr. R K Singh, Member (Technical) Date of Hearing/ Decision: 03.08.2016 FINAL ORDER NO .52968 /2016 Per Archana Wadhwa (for the Bench):
Being aggrieved with the order passed by Commissioner (Appeals), Revenue has challenged the said order.
2. After hearing both sides duly represented by Shri S K Sheoram, learned AR appearing for the Revenue and Shri Niranjan, learned Advocate appearing for the respondent, we find that the appellants imported 8 consignments of ferrite magnets and filed 8 Bills of Entry. However, there was no claim of benefit of exemption notification NO. 12/12-Cus dated 17.3.2012 in the said Bill of Entry filed by the respondents, which were assessed by the proper officer without extending the benefit of said notification.
3. Subsequent to the clearance of goods, the respondents relied that they have not claimed benefit of said notification which unconditionally exempts all items covered under list 21 from whole of duty of customs and accordingly, filed a refund claim of Rs.6,76,165/-.
4. The said refund claim was rejected by Deputy Commissioner on the sole ground that the assessed Bill of Entries have not been put to challenge by the assessee before the higher appellate forum and as such, as per the law declared by the Honble Supreme Court in the case of Flock (India) Pvt Ltd. [2000 (120) ELT 285 (SC)] , refund cannot be entertained directly. On an appeal against the said order, Commissioner (Appeals) took into consideration the Honble Delhi High Court decision in the case of Aman Medical Products Ltd. vs. CC, Delhi ][2010 (250) ELT 30 (Del)] wherein both the decisions of Honble Supreme Court in the case of Flock (India) Pvt. Ltd. as also the case of Priya Blue Industries Ltd. vs Commissioner [2004 (172) ELT 145 (SC)] were considered and it was held that said decision of the Honble Supreme Court would apply only in those cases where there was a lis between the importer and the Revenue. As such, by following the said decision of the Honble Delhi High Court as also the Tribunals decision in the case of Akzo Nobel Coating India Pvt. Ltd. vs. CC (Sea) Chennai [2014 (312) ELT 91 (Tri-Chennai)], he allowed the appeal.
5. Hence the present appeal by the Revenue.
6. After hearing both sides, we find that facts are not in dispute. Admittedly, the importer did not claim the benefit of notification NO. 12/2012 in the Bill of Entry so filed by them which came to be finally assessed by the proper officer of the Customs, without considering the applicability or otherwise of the said notification. As such, it can be held that there was no lis between the Revenue and the assessee, on account of non-claiming of the notification in question. It is only subsequently the assessee filed the refund claim. The original adjudicating authority, inspite of examining the applicability of the said notification, rejected the refund claim on the sole ground that the assessment order was not put to challenge. We find that the scenario in the present appeal is identifiable to the facts of Aman Medical Products judgment.
7. When the said order in original of the Deputy Commissioner was put to challenge before Commissioner (Appeals), the appellate authority observed that denial of refund claim on the sole ground of not having challenged the assessed Bill of Entry, is not proper inasmuch as there was no lis between two on account of non-claiming of notification. He also considered that the assessed product being ferrite magnets are covered by the notification in question. And as such, the issue of non challenge to assess Bill of Entry cannot be adopted as a ground of filing the claim.
8. Revenue in their memo of appeal have raised the following grounds for setting aside the impugned order of Commissioner (Appeals) :
1.1 In this case, the Deputy Commissioner while rejecting the refund claim has squarely relied upon the Boards Circular No. 24/2004-Cus dated 18.3.2004 wherein on the basis of recent Supreme Courts judgment it was affirmed that a refund claim was not maintainable when the assessee has not challenged the assessment order which became final. It may well be appreciated that in the age of self assessment, the onus to file correct classification as well as invoking proper notification to avail due benefit on the importer themselves.
1.2 Further, Honble Supreme Court has upheld the decision of CEGAT in the matter of M/s. Super Cassettes Industries vs Commissioner [2004 (163) ELT A116 (SC)] whereby it was held that the refund claim is not maintainable where the assessee / appellant has not challenged the assessment order because in that case the assessment order becomes final.
1.3 Honble Supreme Court vide the order in the case of M/s. Priya Blue Industries Ltd. vs. Commissioner, reported at 2004 (172) ELT 145 (SC) has held that once the assessment order vide which duty was paid is not challenged and has become final, a refund claim is not maintainable. Supreme Court in this case has clearly propounded that once an order of assessment is passed the duty would be payable as per that order unless the order of assessment has been reviewed under section 28 and /or modified in an appeal that Order Stands. So long as the order of assessment stands the duty would be payable as per that order of assessment. A refund claim is not an appeal proceeding. It further observed that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party did not choose to exercise the statutory right of filing an 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 the adjudicating authority had committed an error in passing his order.
1.4 Honble Supreme Court vide the order in the case of Collector vs. M/s. Flock India, reported at 2000 (120) ELT 285 (SC) has held that once an order of assessment is passed the duty would be payable as per the order. Unless that order of assessment has been reviewed under section 28 and / or modified in an appeal that order stands. So long as the order of assessment stands the duty would be payable as per that order of assessment. Also in the case of M/s. HCL Perot Systems, it was held by the Apex Court that where an appealable order under the Central Excise Act / Rules was not challenged by the assessee, it was not open to them to question the correctness of the order indirectly by filing a refund claim under section 11B of the Act.
1.5 The observation made by Honble Supreme Court were notified by the Board vide Circular No. 24/2004-Cus dated 18.3.2004 with the direction to the field formation to follow Supreme Courts judgment in all future cases.
9. As is seen from the above, the only objection of the revenue relates to the challenge to the assessed Bill of Entry and nowhere in the grounds of appeal, they have raised any contention that notification was not available to the assessee. Infact we note that reading from the order of Deputy Commissioner, Revenue has nowhere held or entertained a view that notification benefit is not available to the assessee. As such, the only issue required to be decided by us is as to whether in such facts and circumstances, the non-challenge to the Bill of Entry would be considered as a bar for claiming refund.
Such a situation has already been considered by Honble Delhi High Court in the case of Aman Medical Products Ltd. with which we are bound. As such, we are of the view that Commissioner (Appeals) has rightly followed the Delhi High Court decision and has rightly held in favour of the respondent. We find no justifiable reason to interfere in the impugned order of the Commissioner (Appeals). Accordingly, Revenues appeal is rejected.
(dictated and pronounced in the open court )
( Archana Wadhwa ) Member(Judicial)
( R K Singh )
Member(Technical)
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