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1 - 7 of 7 (0.19 seconds)M/S. Priya Blue Industries Ltd vs Commissioner Of Customs (Preventive) on 17 September, 2004
5.?The Tribunal has referred to the cases of CCE, Kanpur v. Flock (India) Pvt. Ltd. [2000 (120) E.L.T. 285] and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive), 2004 (172) E.L.T. 145 (S.C.). In both these cases, referred to by the Tribunal there was an assessment order which was passed and consequently it was held that where an adjudicating authority passed an order which is appealable and the party did not chose to exercise the statutory right of 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 adjudicating authority had committed an error in passing his order. These judgments will therefore not apply when there is no assessment order on dispute/contest, like as is in the facts of the present case.
Ref: Case No. 25/2010, 41/2010, ... vs .£33 U?" £~':S5=..Ig1"M'1E':Nt 0'? ... on 16 February, 2012
4. The learned Counsel for the appellant submits that the appellant has bonafidely mistaken in non-claiming the exemption Notification No.12/12-CE dated 17/03/2012 (Serial No.133) due to ignorance about the availability of the said notification. He submits that as per the Commissioner (Appeal)s order the eligibility of the exemption notification is no more under dispute as the same attained finality particularly when the Revenue has not challenged the said findings of the Commissioner (Appeals). It is his submission that when there is no dispute as regards the eligibility of exemption Notification there is no need to challenge the assessment of bills of entry in order to claim the refund. He further submits that in the present case, it is a case of self assessment of bills of entry and there is no assessment order by any proper officer. Therefore, there is no need to challenge the self assessed bills of entry. In the present facts of the case, the ratio of the Honble Apex Court judgement in the case of Priya Blue is not applicable. The learned Counsel has placed reliance on the judgement of the Delhi High Court in the case of CC Goa Vs. SESA Goa Ltd. 2014 (299) ELT 221 Tri-Mum wherein relying on the Delhi High Court judgement in the case of Aman Medical Products Ltd., Vs. CC, Delhi - 2010 (250) ELT 30 it was held that when there is no lis between the assessee and the Revenue at the time of payment of duty, the assessee will not be deprived of refund claim and the question of filing appeal against the order of assessment does not arise.
Collector Of Central Excise,Kanpur vs Flock (India) Pvt. Ltd. C-7, Panki ... on 4 August, 2000
5.?The Tribunal has referred to the cases of CCE, Kanpur v. Flock (India) Pvt. Ltd. [2000 (120) E.L.T. 285] and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive), 2004 (172) E.L.T. 145 (S.C.). In both these cases, referred to by the Tribunal there was an assessment order which was passed and consequently it was held that where an adjudicating authority passed an order which is appealable and the party did not chose to exercise the statutory right of 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 adjudicating authority had committed an error in passing his order. These judgments will therefore not apply when there is no assessment order on dispute/contest, like as is in the facts of the present case.
Section 28C in The Customs Act, 1962 [Entire Act]
M/S Aman Cargo Private Limited vs Cc, New Delhi on 2 August, 2011
6.4 On comparing the provisions of present and past it transpires that in the old provision, the refund was to be filed in pursuance of the order of the assessment and such order is subject to challenge in further appeal proceeding. In such cases the refund will accrue only after challenge the order of assessment. However, as per the present provision of Section 27, if the duty is paid by a person under self assessment refund can be filed without filing any appeal, because in the present provision if the self assessment is done then there is no order of assessment by any proper officer. So in view of the above, in the case where duty was paid after the amended Section 27 i.e., after 08/04/2011 where a person has paid duty on self assessment, the refund is maintainable. The judgement of Apex Court in the case of Priya Blue Industries Ltd. is in context of old Section 27 where the duty was to be paid in pursuance of the order of assessment. More over, in the case of Aman Medical Products Ltd., supra, the Honble Delhi High Court distinguishing the judgement of Honble Apex Court in the case of Priya Blue held as under:
Cc (Preventive)Amritsar vs M/S.Malwa Industries Ltd on 12 February, 2009
3. Though the learned adjudicating authority has not disputed the Chartered Accountants certificate to the effect that the same was shown as refund receivable under the head advances falling under said group in trial balance. Thus, it was held that there is a case of unjust enrichment. The appellant, aggrieved by the said adjudication order, filed appeal before the Commissioner (Appeals) who in his order dealing with the above three issues held that since the appellant has not appealed against the finally assessed 28 Bills of entry the refund claim would not be maintainable. As regards the eligibility of exemption Notification No.12/2012-CE dated 17/03/2012 (Sl.No.133) relying on the judgement of Honble Supreme Court in the case of CC (Prev), Amritsar Vs. Malwa Industries Ltd. 2009-TIOL-17-SC held that the exemption notification is applicable to other products and preparations of any kind which would cover the goods imported by the appellant. As regards the unjust enrichment, as against the claim of the appellant that the amount of refund has been shown as refundable CVD as appears under the head of advances in books of accounts, the lower appellate authority did not satisfactory because though find the amount have been shown as deposit in the relevant years does not mean that subsequently they have not been apportioned towards expense accounts.
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