TMI Blog2006 (1) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... ills of Entry and cleared them on payment of Customs duty. As a result of re-classification of the impugned goods the appellants preferred refund claim of the differential duties paid by them and amounting to Rs. 1,75,458/- in respect of Heating unit for Lock Hoppers and Rs. 1,02,65,254/- in respect of Refractories. The lower authority granted the refund. While passing the refund order, the lower authority placed reliance on the decision of Bombay High Court in the case of Atul Product Ltd v. UOI [1985 (22) E.L.T. 714] and Solar Pesticides [1992 (57) E.L.T. 201] on the issue of unjust enrichment. A show cause notice dated 6-6-2000 was issued to the appellants on the ground that in respect of refractories, the refund amount sanctioned was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... points :- (i) The Commissioner (Appeals) has traversed beyond the show cause notice. In the impugned order, the Commissioner (Appeals) has observed that the respondent has simply claimed the refund before the lower authority but have neither questioned the original classification done by the lower authority nor have the respondent filed any Appeal against the classification effected at the time of importation. The assessment made in the Bill of Entry is an appealable order. It is a settled law that refund applications are not maintainable when the assessment order has not been challenged. While making the observation, the learned Commissioner (Appeals) has relied on the Hon ble Apex Court decision in the case of CCE, Kanpur v. Flock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Advocate pointed out that the Apex Court (Three Judges Judgment) in the case of Karnataka Power Corporation Ltd. v. UOI [2002 (143) E.L.T. 482 (S.C.)] held that a refund claim was itself a challenge to the assessment order. (iv) The learned Advocate pointed out that the above decision directly relates to the refund under the Customs Act, 1962 whereas the Flock (India) Pvt Ltd. case (supra) relied on by the Appellate authority relates to Central Excise. (v) The Tribunal in the case of Mecon Ltd v. CCE [2003 (153) E.L.T. 574 (T)] has held that refund claim amounts to filing a request for re-assessment of Bill of Entry and required to be made as per the provisions of Section 27 of the Customs Act, 1962. It was held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) Toyo Engineering India Ltd. v. CC [2004 (175) E.L.T. 793 (T)] 4. The learned JDR mainly relied on the decisions of Flock (India) Ltd. (supra) and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) reported in 2004 (172) E.L.T. 145 (S.C.) = 2004 (TIOL) 78-SC-CUS wherein it was held that the once an Order of Assessment is passed, the duty is payable as per that order. Unless that the 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 the Order of Assessment. The refund claim is not an Appeal. The Officer considering the refund claim cannot sit in Appeal over an assessment made by a competent O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been made without challenging the order of assessment is not one of the grounds of the appeal by the Revenue before the Commissioner (Appeals). In that case, the Commissioner s (Appeals) reliance on Flock (India) Ltd. case (supra) traverses beyond the grounds of the appeal and also the show cause notice issued to the appellants for recovery of erroneous refund. On this ground alone, the Order-in-Appeal is not legal and proper. That apart, we agree with the learned Counsel that the Solar Pesticides decision of the Apex Court relates to inputs and not Capital goods. The case laws cited by the learned Advocate clearly hold that the bar of unjust enrichment is not applicable to the Capital goods. Moreover, the Customs Manual clearly outli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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