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TMI Blog2010 (5) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the said list were required for the said project. The first of these conditions was fulfilled by the importer, but the second condition could not be met by them. As a matter of fact, it was only after obtaining provisional release of the goods that the appellant applied to the Ministry for the requisite certificate. The assessee pursued the matter with MOEF and obtained a certificate on 29-1-1999 to the effect that the goods descri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 above grounds was contested by the party. In adjudication of the dispute, the Deputy Commissioner of Customs held to the effect that the certificate from MOEF produced by the party did not satisfy condition No. 23 attached to the Notification inasmuch as "second-hand/refurbished motor winding line" imported by them was not covered by that certificate. The refund claim thus came to be rejected on merits. The adjudicating authority observed that there was no need to look into the question of unjust enrichment. The order-in-original was upheld by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. (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 Tribunal to reject the refund claim on such ground. If, on the other hand, the claim is rejected on the said ground, it would be beyond the scope of the show-cause notice, which is impermissible, as held by the Supreme Court in SACI Allied Products Ltd. v. CCE, Meerut - 2005 (183) E.L.T. 225 (S.C.). 3. The learned JCDR has opposed the above arguments. He submits that the assessee paid duty on the basis of the finalised assessment and also availed MODVAT credit of the CVD part thereof. In other words, the assessee accepted the finalisation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 paid duty on the basis of assessment but claims refund of the whole or any part of such duty subsequently, he would not be entitled to such refund unless the assessment has been successfully challenged in accordance with the provisions of law. Admittedly, in the instant case, there was no challenge to the finalised assessment. Therefore, the above ruling of the Apex Court would operate against the appellant. 5. The learned counsel has relied on the Tribunal's decision in Jindal Vijayanagar Steel (supra) wherein it was held that the refund cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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