TMI Blog2010 (10) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund - Decided in favor of the assessee - C/1057/2006 - A/1863/2010-WZB/AHD - Dated:- 8-10-2010 - Ms. Archana Wadhwa, Shri B.S.V. Murthy, JJ. REPRESENTED BY : S/Shri T. Chandran and S.S. Sekhon, Advocates, for the Appellant. Shri R. Nagar, SDR for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. Indian Oil Corporation Ltd. (IOCL) the nominated canalizing agency during the relevant period sold 1,995.932 MT of HSD on 28-10-96 to HPCL the appellant in this case and HPCL filed an ex-bond bill of entry on 30-10-96 for the clearance of this HSD and paid customs duty of Rs. 78,16,301/-. However subsequently on being informed that the HSD sold to HPCL was not imported one but of indigenous origin, the HPCL filed a fresh D-3 declaration on the basis of a fresh AR-3A issued on 14-11-96 by IOCL showing the HSD in question as of indigenous origin. After filing D-3 declaration, HPCL also paid central excise duty amounting to Rs. 24,01,593/- on 18-11-96 and thereafter filed a refund claim on 7-2-97 since HPCL had paid duty on the same consignment twice; first time customs duty and second time central excise duty. The refund claim filed in respect of customs du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposal for rejection of refund claim on the ground that assessment was not challenged. Further it was also submitted that a totally new ground cannot be taken in view of the fact that the remand order passed by the Commissioner (Appeals) earlier directing the Assistant Commissioner to consider refund claim and the appellant to produce the relevant documents has not been challenged. It was also submitted that filing of refund claim itself is a challenge of assessment of bill of entry and hence refund claim is admissible. 3. Learned DR on the other hand submitted that in the initial stage the refund claim was rejected on the ground that the documents were not submitted. In the second round, the Assistant Commissioner sanctioned the refund. If an issue is not raised in the show cause notice and subsequently an order is passed on that basis, it cannot be said that department cannot take up a new ground especially the one which is a legal ground. He submitted that the appeal filed by the department that refund claim should have been rejected because of the decision of the Hon ble Supreme Court for non-challenge of bill of entry assessment was a legal ground and therefore can be legiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-1996 from M/s. IOCL stating that the cargo given to M/s. HPCL is indigenous cargo. 8. A copy of TR-6 challan No. 106 dated 7-2-1997 fro payment of central excise duty for Rs. 24,01,593/- (for 2381.786 kls. of HSD equivalent to 1995.932 M.tons) 9. Chartered Accountant certificate dt : 19-10-2002 issued by D.S. Sharma Associates, Chartered Accountants M. No. 047342. 10. A certificate dated 29-1-2004 from Assistant Commissioner of Central Excise Duty amount Rs. 24,01,593/-. 11. A letter from M/s. IOCL dated April 7,2004 stating that they have no objection if the refund claim is granted to M/s. HPCL. 12. A copy of calibration of Tank No. 105. 13. A copy of Board Circular No. 46/2000-Cus., dated 18-5-2000 14. A copy of Board Circular No. 96/2002-Cus., dated 27-12-2002 6. The original adjudicating authority after confirming that the provisional assessment has been finalized in respect of into bond bill of entry and goods warehoused as per the into bond bill of entry have been duly cleared by IOCL on payment of duty and therefore IOCL have accounted for the full quantity imported and after confirming that customs duty paid by HPCL was a second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in reality of imported origin because of the peculiar circumstances explained above. Thereafter the appellants have filed AR-3A and D-3 declaration and thereafter paid the central excise duty also. No doubt the central excise duty is paid on the basis of self assessment but when the self assessment made by the party is not revised by the department, it amounts to an assessment. No doubt it can be argued that the reassessment was not done as per the provisions of Section 17 of Customs Act, 1962 but once the same authority in-charge of the warehouse accepts the self assessment and the correctness of central excise duty paid, it has to be treated as a deemed reassessment of the goods. Obviously the same goods cannot be assessed as imported goods as well as indigenous goods. Therefore once the assessment of goods originally treated as imported is reassessed as indigenous subsequently, the obvious conclusion would be that goods have been reassessed as of indigenous origin and therefore the provisions of Section 17 relating to reassessment can be said to have been completed. The submission of the learned DR that bill of entry should have been cancelled and an application should have been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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