2023 (3) TMI 752 - AT - Customs

Benefit of exemption of SAD - refund claims filed were rejected as premature by the Assistant Commissioner of Customs (Refunds) as there was no challenge of assessment done in terms of the Hon’ble Apex Court decision in the case of PRIYA BLUE INDUSTRIES LTD. VERSUS COMMISSIONER OF CUSTOMS (PREVENTIVE) [2004 (9) TMI 105 - SUPREME COURT] - Applicability of N/N. 51/96-Cus dated 23.07.1996 for import of various scientific and technical instruments during June, 2011 to August 2011 - excess duties paid are refundable or not without challenging the self-assessment or order of the assessment of the bills of entry as found in this appeal.

HELD THAT:- The issue is covered in the assessee’s own case NATIONAL INSTITUTE OF OCEAN TECHNOLOGY VERSUS COMMISSIONER OF CUSTOMS (AIR) , CHENNAI [2015 (4) TMI 198 - CESTAT CHENNAI] where it was held that In absence of any description and nomenclature of additional duty in the notification there cannot be any interpretation otherwise possible to deprive the appellant from exemption of additional duty of Customs. In view of the clear mandate of the notification to exempt additional duty of customs, the goods imported are eligible to the exemption from additional duty of customs thereon.

Non-challenge to the order of assessment against the bills of entry - HELD THAT:- The Tribunal has held in the case of M/S. FRESENIUS MEDICAL CARE INDIA PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS - IV CHENNAI [2018 (7) TMI 103 - CESTAT CHENNAI] has held that the Court noticed that it was always not necessary to have an order of assessment for a person to claim refund of duty. The initial payment of duty in terms of Section 27(1)(i) of the Act could be pursuant to an order of assessment or in terms of Section 27(1)(ii) of the Act could be borne by him.

However, it is noted that the Hon’ble Apex Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT] has held that the assessment order including self-assessment needs to be challenged to become eligible for refund. In this case, the appellants when applied for refund, the refund sanctioning authority has communicated vide their letter F. No. S25A/ Gen/27/2010-Ref (Air) dated 16.09.2011, that the order of assessment cannot be reviewed or modified in terms of the Hon’ble Apex Court decision in the case of M/s. Priya Blue Industries Vs. Commissioner of Customs. Refund would arise only if the order is reviewed, modified or revised. The decision of the Hon’ble Apex Court in ITC Ltd. Vs. Commissioner of Central Excise, Kolkata-IV set aside the decisions in the case of AMAN MEDICAL PRODUCTS LTD. VERSUS COMMISSIONER OF CUSTOMS, DELHI [2009 (9) TMI 41 - DELHI HIGH COURT] and MICROMAX INFORMATICS LIMITED VERSUS UNION OF INDIA & OTHERS [2016 (3) TMI 431 - DELHI HIGH COURT].

Thus, there is no need to decide about the eligibility of the appellant for SAD exemption under Notification No. 51/1996 was issued on 23.07.1996.

Further, the facts in this appeal clearly indicate that the appellants have not challenged the order of assessment, as such, we have to hold that appellants are not eligible for the refund. The order of rejection of refund by the refund sanctioning authority is upheld.

Appeal dismissed.