Custom, Excise & Service Tax Tribunal
Ual Industries Ltd Ual Bengal vs Kolkata(Port) on 6 March, 2024
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
KOLKATA
REGIONAL BENCH - COURT NO.1
1. Customs Appeal No.79325 of 2018
(On behalf of Appellant)
(Arising out of Order-in-Appeal Nos.Kol/Cus.(Port)/AA/1781-1785/2018 dated
11.09.2018 passed by Commissioner (Appeals) of Customs, Kolkata)
M/s UAL Industries Limited
UAL Bengal, 16, Mayfair Road, Kolkata-700019
Appellant
VERSUS
Commissioner of Customs, Kolkata
15/1, Strand Road, Kolkata-700001
Respondent
WITH
2. Customs Appeal No.79236 of 2018
3. Customs Appeal No.79237 of 2018
4. Customs Appeal No.79238 of 2018
5. Customs Appeal No.79239 of 2018 (On behalf of Appellant) (Arising out of Order-in-Appeal Nos.Kol/Cus.(Port)/AA/1781-1785/2018 dated 11.09.2018 passed by Commissioner (Appeals) of Customs, Kolkata) M/s UAL Industries Limited UAL Bengal, 16, Mayfair Road, Kolkata-700019 Appellant VERSUS Commissioner of Customs, Kolkata 15/1, Strand Road, Kolkata-700001 Respondent APPERANCE :
Shri S.P.Majumder, Advocate for Appellant-Assessee Shri A.K.Choudhary, Authorised Representative for the Revenue CORAM:
HON'BLE MR.ASHOK JINDAL, MEMBER (JUDICIAL) HON'BLE MR.K.ANPAZHAKAN, MEMBER (TECHNICAL) FINAL ORDER NO.75485-75489/2024 DATE OF HEARING : 06.03.2024 DATE OF DECISION : 06.03.2024 2 Customs Appeal Nos.79325/2018 & 79236-79239/2018 Per Ashok Jindal :
All the five appeals are arising out of the same impugned order, where the refund claims of the appellants have been rejected. According, the same are being disposed off by a common order.
2. The facts of the case are that the appellants entered into an agreement with their foreign supplier for supply of Chrysotile Asbestos Fibre. The contract provided for quantity discount, which were provided the pre-fixed quantities as per contract. The appellants imported the said goods during the period 11.07.2016 to 17.02.2017. 2.1 On 07.07.2017, after achieving the guaranteed quantity, the appellants obtained refund from the supplier as discount on the imported goods and filed refund application before the adjudicating authority.
2.2 On 10.11.2017, the refund application was rejected on the ground that the assessment orders were not challenged, which became final.
2.3 Then, the appellants filed appeals before the ld.Commissioner (Appeals), who upheld the adjudication order. 2.4 Being aggrieved with the said order, the appellants are before us.
3. The ld.Counsel for the appellants submits that the appellants filed self-assessed Bills of Entry and as per contract with the overseas supplier, the imports made by the appellants were subject to quantity discount after achieving import of the pre-fixed quantities. It is pertinent to mention here that the appellants did not opt for provisional release of the goods. The appellants filed refund claim and relied on the decision of the Hon'ble Apex Court in the case of Chaudhary Ship 3 Customs Appeal Nos.79325/2018 & 79236-79239/2018 Breakers Vs. Commissioner of Customs, Ahmedabad reported in 2010 (259) ELT 161 (S.C.). It is his submission that the refund claim was rejected only on the ground that the appellants did not challenge the assessment order, which has become final. He further submits that although the appellants did not file the appeals against the self-
assessed bills of entry, but from the contract signed with the overseas supplier, it is clear that the imports were subject to quantity discount upon achieving import of the pre-fixed quantities. Therefore, there is a price variation clause was embedded from the contract. In that circumstances, the assessments by any means have to be treated as deemed provisional. To support his contention, he relies on the following decisions of this Tribunal :
(i) 2000 (117) ELT 596 (Tribunal) [ Asiatic Oxygen & Actylene Co.Ltd. Vs. CCE, Indore ],
(ii) 2008 (231) ELT 485 (Tri.-Bang.) [ Ideal Industrial Explosives Limited Vs. CCE., Hyderabad ]
(iii) 2009 (237) ELT 428 (Tri.-Bang.) [ ECE Industries Limited Vs. CC & C.Ex., Hyderabad ],
(iv) 2007 (219) ELT 473 (Tri.-Bang.) [ CCE,Tirupati Vs. Kurool Cylinders Pvt. Ltd.].
4. The ld.Counsel for the appellants further submits that the self- assessed Bills of Entry can be amended as provided under Section 149 and Section 154 of the Customs Act, 1962. In this regard, he relies on the following decisions.
(i) 2021 (376) ELT 192 (Bom.) [Dimension Data India Private Limited Vs. CC ], 4 Customs Appeal Nos.79325/2018 & 79236-79239/2018
(ii) (2023) 4 Centax 322 (Tri.-Del) [Principal Commissioner of Customs, ACC (Import), New Delhi Vs. Lava International Ltd.]
(iii) 2021 (375) ELT 488 (Mad.) [Hewlett Packard Entereprise India Private Limited Vs. Jt.Commissioner of Customs, Chennai ],
(iv) 2023 (385) ELT 118 (Mad.) [ Stanley Engineered Fasterning India Private Limited Vs. Authorised Officer, SIPCOT HI-TECH, SEZ, Kancheepuram ].
5. On the other hand, the ld.A.R. for the Revenue, submitted that the issue has been settled by the Hon'ble Supreme Court in the case of ITC Limited Vs. Commissioner reported in 2019 (368) ELT 216 (S.C.) wherein it has been held that without modification or challenge of the adjudication order, refund claim cannot be entertained.
6. Heard both sides and considered the submissions.
7. We find that the ld.Counsel contended that as there is a price variation clause in the contract, therefore, sought relief in view of the decision in the case of Chaudhary Ship Breakers (supra), the said decision is of no help to the appellants as in that case, the assessment of Bills of Entry was done provisional. The decision relied upon in the case of Ideal Industrial Explosives Limited (supra), the issue was whether refund claim was filed in time or not ?
8. Admittedly, in the case in hand, the refund claims were filed without challenge the assessment of the Bills of Entry and the Hon'ble Apex Court in the case of ITC Limited (supra) has observed as under :
"44. The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to 5 Customs Appeal Nos.79325/2018 & 79236-79239/2018 be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re-assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. .................................
45. .................................................................................................
46. .................................................................................................
47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act.
48. Resultantly, we find that the order (s) passed by Customs, Excise, and Service Tax Appellate Tribunal is to be upheld and 6 Customs Appeal Nos.79325/2018 & 79236-79239/2018 that passed by the High Courts of Delhi and Madras to the contrary, deserves to be and are hereby set aside. We order accordingly. We hold that the applications for refund were not maintainable. The appeals are accordingly disposed of. Parties to bear their own costs as incurred.
9. Admittedly, the appellants have not filed any application under Sections 144 & 149 of the Customs Act, 1962 for rectification or amendment of the Bills of Entry, therefore, the "case laws" relied by the appellants mentioned in Para 4 above, are no help.
10. In that circumstances, following the decision of the Hon'ble Apex Court in the case of ITC Limited (supra), the refund claims are not maintainable as neither Bills of Entry were modified nor the assessments of Bills of Entry were challenged by the appellants. Therefore, the appeals filed by the appellants are dismissed by upholding the impugned order.
(Operative part of the order was pronounced in the open court.) (Ashok Jindal) Member (Judicial) (K.Anpazhakan) mm Member (Technical)