Custom, Excise & Service Tax Tribunal
M/S. The Shipping Corporation Of India ... vs Commissioner Of Customs, Bangalore on 26 May, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court I
Date of Hearing: 26/05/2010
Date of decision:26/05/2010
Appeal No.C/110/06
(Arising out of Order-in-Appeal No.106/2005 CUS(B) dt. 8/12/2005
passed by CC(Appeals), Bangalore)
For approval and signature:
Honble Mr. Justice R.M.S. Khandeparkar, President
Honble Mr. P. Karthikeyan, Member(Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
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 Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. The Shipping Corporation of India Ltd.
..Appellant(s)
Vs.
Commissioner of Customs, Bangalore
..Respondent(s)
Appearance None for the appellant.
Mr.M.Vivekanandan, SDR for the Revenue.
Coram:
Honble Mr. Justice R.M.S. Khandeparkar, President Honble Mr. P. Karthikeyan, Member(Technical) FINAL ORDER No._______________________2010 Per Justice R.M.S. Khandeparkar None present for the appellants. DR present for the respondent.
2. The appellants have filed an application dt. 20/5/2010 stating that the advocate Shri Sunil K. Choudhury who is attending the present case will be preoccupied today with other matters and therefore this matter may be adjourned. The ground disclosed in the application is no justification for adjournment. Merely because the counsel is pre-occupied in another matter that cannot be a ground for adjournment of the matter in hand. Besides, it was well known to the appellants well in advance that the said advocate would be pre-occupied in another matter. It was the duty of the party to make necessary alternative arrangement. We find no justification for adjournment of the matter. Request for adjournment is, therefore, rejected.
3. We have perused the records with the assistance by the ld. DR and we have heard him in the matter.
4. The ld. DR has brought to our notice that appellants have not obtained COD clearance before filing the appeal and on that ground itself, the appeal is liable to be dismissed.
5. The appeal relates to the year 2006. The same is filed against the order which was passed by the Commissioner(Appeals) in the year 2005. The original order was also passed in the year 2005 while the matter relates to the claim of refund made in the year 2004 subsequent to the finalization of assessment on 27/05/2004 in relation to the Bill of Entry dt. 19/09/2002. In the background of these facts and considering the issue sought to be raised in the matter, we are not inclined to dispose the matter only on the ground of the absence of COD clearance.
6. Perusal of the records discloses that consequent to the finalization of assessment on 27/05/2004, the appellants herein filed a refund claim under their application dt. 22/11/2004 for an amount of Rs.16,38,337/-. It is also to be noted that the appellants did not challenge the final assessment order. Under the final assessment order, the appellants were entitled for refund of Rs.6,97,958/- and not Rs.16,38,337/- as claimed by the appellants. Considering the same, the Deputy Commissioner, Mangalore allowed the refund claim to the extent of Rs.6,97,958/- under its order dt. 14/03/2005. Being not satisfied, the appellants approached the Commissioner(Appeals) which was dismissed under order dt. 08/12/2005.
7. The impugned order is sought to be challenged on the following grounds:-
a. The appellate authority has committed an error in law and facts in holding that Boards Circular No.24/2004 would be applicable to the facts of the present case. He has failed to appreciate that the refund claim in the present case was filed in terms of specific provisions contained in Section 18(2) of the Customs Act and not under Section 27 of the Act per se.
b. It is the contention of the appellant that the ratio of Supreme Court judgment in Priya Blue Industries case 2004(172) ELT 145 (SC) would not be applicable to the facts of the present case for the reasons stated in ground No.1 above.
c. There is contradiction in the reasoning given by the appellate authority in as much as while agreeing with the argument of the consultant that the appellant under Section 18(2) of the Customs Act are entitled for the refund of excess duty, they are not entitled to claim more than what has been determined by the lower authority as excess refundable amount.
d. The above argument runs counter to the specific provision relating to limitation contained in Section 27 of the Customs Act for filing refund claim within 6 months from the date of finalization of provisional assessment and renders the said provision redundant.
e. Appellant adopts the grounds taken on their reply to the show cause notice as well as grounds taken in 1st appeal.
8. The sum and substance of the challenge to the impugned order is that the authorities below erred in applying the Boards Circular No.24/2004 to the facts of the case ignoring the fact that the application was filed under Section 18(2) of the Customs Act and not Section 27 of the said Act and further that, the decision of the Apex Court in Priya Blue Industries Ltd. case reported in 2004(172) ELT 145 is not applicable to the case in hand.
9. The records do not disclose, nor any dispute sought to be raised about the fact that the final assessment order was never challenged by the appellants. Records also do not disclose any dispute about the fact that in terms of the final assessment order, the appellants were entitled for refund of Rs.6,97,958/-.
10. The Commissioner(Appeals) while dismissing the appeal has held that in view of failure on the part of the appellants to challenge the assessment order, which had attained finality, question of grant of any refund in excess of the amount refundable in terms of the said order does not arise and further, while agreeing with the contention of the appellants about the scope of Section 18(2)(a) and Section 27 of the said Act, has held that once final assessment order was passed by proper officer and had decided the same in accordance with the provisions of law and the same, in the absence of any challenge, having attained finality, it is not open to the appellants to claim refund in excess or what had been decided under the said final assessment order. In that regard, reference is made to the Boards Circular as well as the decision of the Apex Court in Priya Blue Industries Ltd. case.
11. The Tribunal in Priya Blue Industries Ltd. Vs. Commissioner of Customs, Ahmedabad reported in 2002(148) ELT 809 (Tri. Del.) had held that the assessment having been finalized on the bill of entry and no appeal having been preferred, the decision had attained finality and therefore, refund claim cannot exceed the amount decided in terms of such final assessment. In that regard, reference was made to the earlier decision of the Tribunal in Kopran Ltd. Vs. Commissioner of Customs, New Delhi reported in 2002(141) ELT 694(Tri). In the same case, the Tribunal after referring to its own cases in the matter of Khemka Travels Vs. Collector reported in 1992(57) ELT 458 (Tri.) and Gokul Metallizers Pvt. Ltd. Vs. Commissioner reported in 2001(129) ELT 157 (Tri.) as well as to the decision of the Honble Supreme Court in the matter of CCE Vs. Flock (India) Pvt. Ltd. reported in 2000(120) ELT 285 (S.C.) held that as no appeal was filed against final assessment order, refund claim cannot exceed the amount decided in terms of the final assessment order. Indeed the Apex Court in Flock (India) Pvt. Ltd. case (supra) had held that where an adjudicating authority passed an order which was appealable under the statutory provisions but the aggrieved party did not prefer any appeal, it was not open to such party to question the correctness of the order of the adjudicating authority by filing a refund claim.
12. The decision in Priya Blue Industries Ltd. case was sought to be challenged before the Apex Court without any success. The appeal was dismissed while observing We see no reason to interfere. The same was reported in 2004(170) ELT A308(S.C).
13. Circular No.24/2004-Cus. dt. 18/03/2004 issued by the Board merely follows the decision of the Apex Court in Flock (India) Pvt. Ltd. case and clarifies that in the absence of challenge to the assessment order, it attains finality and no refund claim in excess of the amount refundable in terms of the final assessment order is maintainable.
14. Taking into consideration the scope of the challenge in the appeal and provisions of law as well as the decisions referred to above, we find no case for interference in the impugned order and therefore, the appeal is dismissed.
(Pronounced and dictated in open court) JUSTICE R.M.S. KHANDEPARKAR PRESIDENT P. KARTHIKEYAN MEMBER (TECHNICAL) Nr ??
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