Custom, Excise & Service Tax Tribunal
Sanofi Synthelabo (I) Ltd vs Commissioner Of Customs (Acc) on 6 January, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. II APPEAL No.C/1209/06 (Arising out of Order-in-Appeal No.9/2006 Misc.(ACC) dated 07/02/2006 dated 07/02/2006 passed by Commissioner of Customs (Appeals), Mumbai) For approval and signature: Honble Mr. 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? ========================================
Sanofi Synthelabo (I) Ltd. Appellant Vs. Commissioner of Customs (ACC), Respondent Mumbai Appearance: None for appellant Shri.S.J.Sahu, Asst. Comm. (AR), for respondent CORAM: Honble Mr. Raju, Member (Technical) Date of Hearing : 06/01/2017 Date of Decision : 17/01/2017 ORDER NO Per: Raju
1. The appellant, M/s.Sanofi Synthelabo (I) Ltd., filed this appeal against rejection of refund claim. The appellant had imported certain goods and paid normal customs duty. Subsequently, they filed refund claim on the grounds that the goods imported by them fall under list 3 of the Notification No.21/2002 entitling them concessional rate of Basic Customs Duty and CVD. Refund claim was rejected by the lower authorities. Aggrieved by the said order, the appellants are before the Tribunal.
2. No one appeared for the appellant. In a narrow compass in the appeal memorandum the appellants have claimed that the department cannot be calculated the duty without authority of law and that filing of refund claim under Section 27 amounts to an application for re-assessment.
3. Learned AR relies on the impugned order. He argued that the matter has been settled by the Apex Court in the case of Priya Blue Industries 2004 (172) ELT 145 (SC) .
4. I have gone through the rival submission. I find that the appellants have failed to challenge the assessment and simply filed a refund claim. Honble Apex Court in the case of Priya Blue Industries (supra) has observed as follows:
6.? We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India)s case (supra). Once an Order of Assessment is passed the duty would be payable as per that 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. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order.
7.? We also see no substance in the contention that provisions for a period of limitation indicates that a refund claim could be filed without filing an Appeal. Even under Rule 11 under the Excise Act the claim for refund had to be filed within a period of six months. It was still held, in Flock (India)s case (supra), that in the absence of an Appeal having been filed no refund claim could be made.
8.? The words in pursuance of an Order of Assessment only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in Appeal or reviewed a claim for refund can be maintained.
5. In view of the above, the appeal is dismissed.
(Pronounced in Court on ..) (Raju) Member (Technical) pj 1 2 Appeal No.C/1209/06