TMI Blog2010 (5) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... . 138). The goods were assessed provisionally to duty and released to the importer on 9-11-1998 against production of bank guarantee for the differential duty amount of Rs. 1,63,16,799/- including CVD. The benefit of the above Notification was allowed subject to fulfilment of the relevant conditions. As per serial No. 138 of the Table annexed to the Notification, goods falling under any chapter of the Customs Tariff Schedule, which were required for setting up of new capacity with non-ODS (Ozone Depleting Substances) technology were chargeable to 'nil' rate of duty. The Explanation to this entry clarified that such goods should be designed exclusively for non-ODS technology. There were two conditions attached to this benefit of 'nil' rate of duty. Firstly, the project for setting up of new capacity with non-ODS technology should have been approved by the Steering Committee set up in the Ministry of Environment and Forests (MOEF) for the clearance of the project and, secondly, the importer should furnish a list of the goods required for the project accompanied by a certificate from an officer not below the rank of a Deputy Secretary in MOEF to the effect that the goods mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his request as contained in their letter dated 27-5-1999 was acceded to and accordingly the assessment was finalised on 12-7-1999, following which the assessee paid duty of over Rs. 1.63 crores on 19-7-1999. Subsequently, a refund claim was filed on 16-1-2000 for an amount of Rs. 1,15,19,138/-. The party had already availed MODVAT credit of the CVD paid on the goods and hence Chat amount of duty was not included in the refund claim. In support of this refund claim, the assessee claimed that they had complied with the conditions of the Notification and hence entitled to refund of the above amount of duty paid by them. In a show-cause notice subsequently issued to them, the department proposed to reject the refund claim on the following grounds :- (i) The application for Essentiality Certificate was made after clearance and it has been laid down by several decision of Tribunal that the benefit is not available in such cases; (ii) The original Essentiality Certificate dated 29-1-1999, issued does not cover second hand/refurbished goods; (iii) The additional certificate dated 2-9-1999 does not cover the subject goods. The proposal to reject the refund claim on the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 2010 (250) E.L.T. 30 (Del.), has answered the following question of law in the negative : "Whether non-filing of appeal against the assessed Bill of Entry in which there was no lis between the importer and the Revenue at the time of payment of duty will deprive the importer of his right to file refund claim under Section 27 of the Customs Act, 1962?" There was no lis between the appellant and the department in relation to the assessment of the bill of entry and, therefore, there is no bar for claiming refund of the amount of duty paid by the assessee. (d) In the case of Jindal Vijayanagar Steel Ltd. v. CC, Mangalore - 2006 (200) E.L.T. 263 (Tri.-Bang.), it was held that the filing of refund claim itself was a challenge against the assessment order and, therefore, refund was not deniable on the ground that assessment order was not otherwise challenged. In the said case, the cases of Flock (India) Pvt. Ltd. and Priya Blue Industries were also referred to. (e) Neither in the show-cause notice nor in the orders of the lower authorities was there any proposal to reject the refund claim on the ground that the assessment was not challenged. It is not permissible for this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m was not rejected on the ground that the assessment was not challenged. 4. We have given careful consideration to the submissions. Admittedly, the goods were declared in the bill of entry as second-hand/refurbished motor line and parts and accessories thereof, in the same way as the goods had been described in the purchase order. When the bill of entry was provisionally assessed, it was an assessment on the goods as declared by the assessee. This assessment was finalised and, on that basis, duty was paid by the assessee. This finalisation of provisional assessment was made, admittedly, at the assessee's own instance. MODVAT credit of the CVD part of the duty paid by them was availed by the assessee with promptitude. In other words, the assessee chose to take the benefit of the finalised assessment. It is settled law that a final assessment is appealable under the previsions of the Customs Act. Admittedly, no appeal was filed by the assessee. On these facts, the ruling of the Apex Court in Mafatlal Industries (supra) and in the later cases of Flock (India) Pvt. Ltd. and Priya Blue Industries (supra) is squarely applicable. The ruling is to the effect that, where an assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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