2010 (2) TMI 1034 - AT - Central Excise

Refund claim - rejection on the ground that refund claim contrary to assessment order is not maintainable without the order of assessment having been modified in appeal - whether the appellant having made the payment twice is entitled for the refund of excess duty paid without challenging the assessment or not? - Held that - it is a case of double payment made by the appellant and as per the provisions of Central Excise Laws every clearance has the assessment and while making double duty payment it is the duty of the Central Excise officers to examine the case and pass the proper order - The appeal under Section 35 ibid is preferable to Commissioner (Appeals) against order/decision by subordinate Central Excise officer. It is difficult to envisage that the said provision of law provides for an appeal against self-assessment - refund allowed - decided in favor of appellant.

Summary

Issues:
Refund claim rejected by Commissioner (Appeals) based on assessment order not being challenged. Appellant filed appeal against rejection of refund claim.

Analysis:
The appellant calculated duty liability, including duty debited for clearance for home consumption and export. Erroneously debited duty twice, leading to excess payment. Filed refund claim for excess duty. Dy. Commissioner found duty paid twice, sanctioned refund. Revenue appealed, arguing refund claim contrary to assessment order not challenged by appellant, citing legal precedents. Appellant argued double payment case, no assessment done by officers, sought order set aside. Presented legal precedents supporting their case.

The issue in question was whether appellant, having made double payment, is entitled to refund without challenging assessment. SDR argued self-assessment accepted, no challenge made, refund not maintainable per legal precedents. However, Tribunal disagreed with SDR's contentions. Differentiated case from legal precedents cited by SDR, emphasizing absence of appeal or protest against assessment in those cases. Tribunal highlighted appellant's double payment situation, lack of examination or order by Central Excise officers.

Tribunal noted Central Excise Laws require assessment for every clearance, with duty of officers to examine double duty payments. Referenced a Tribunal case stating self-assessment not appealable under Section 35F of Central Excise Act. Concluded no appeal possible without order by officer below Commissioner (Appeals). Found no such order in appellant's case, setting aside impugned order and allowing refund claim. Decision pronounced on 10-2-2010.