9911796707
TMI Blog2010 (10) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... ent twice; first time customs duty and second time central excise duty. The refund claim filed in respect of customs duties by HPCL was rejected on 27-6-02 on the ground that HPCL had not produced necessary documents in support of the claim and on an appeal filed by HPCL, Commissioner (Appeals) remanded the matter to the original adjudicating authority directing HPCL to produce documents as prescribed under public notice No. 15/95 dated 4-5-95. Accordingly HPCL submitted all the relevant documents and on 1-6-05, the Assistant Commissioner passed an order sanctioning the refund claim. Department filed an appeal before Commissioner (Appeals) on the ground that the sanction of refund was not legal and proper since the assessment of bill of entry under which customs duty was paid was not challenged relying upon the decision of the Hon'ble Supreme Court in the case of Priya Blue Industries reported in 2004 (172) E.L.T. 145 (S.C.). The Commissioner (Appeals) in the impugned order allowed the appeal filed by the department and the appellant is before us. 2. Learned advocates on behalf of the appellants submitted that the reliance of the Commissioner (Appeals) on the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Hon'ble Supreme Court for non-challenge of bill of entry assessment was a legal ground and therefore can be legitimately taken up even at a subsequent stage and therefore the decision of the Commissioner (Appeals) accepting such a ground and passing an order cannot be found fault with. Further he also submitted that even if the assessment was correct, the proper course for the party was to apply for cancellation of bill of entry and file a refund claim thereafter. 4. We have considered the submissions made by both the sides. The refund claim filed by HPCL at the first instance was rejected on the following grounds : "(a) Balance Sheet/annual report for the relevant period indicating in the column of loans & advances that an amount of Rs. 78,16,301/- is still lying outstanding from customs. (b) Certificate of Chartered Accountant without which it is very difficult to arrive that incidence of customs duty has been borne by the buyer or passed on to any other person. So the clause of "unjust enrichment" is very much attracted. (c) Triplicate copy of TR-6 challan evidencing that an amount of Rs. 78,16,301/- has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular 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 payment and was in respect of quantity which was not received by them, sanctioned the refund claim. Further he also ensured that appellant had submitted necessary documents to show that the burden of duty had not been passed on to the customers. 7. However, the department filed an appeal against this order on the ground that appellants had not challenged the assessment and therefore in view of the decision of the Hon'ble Supreme Court in the case of Priya Blue Industries, without challenging the assessment order in the bill of entry, appellants could not have filed the refund claim which has been accepted and appeal allowed. 8. First of all we do not think that the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 made is only a technical procedural requirement. Once the departmental officers themselves allowed reassessment and the party filed a refund claim, the bill of entry is deemed to have been cancelled. 10. In this case unfortunately, from the facts of the case it is not clear as to whether the appellant had filed D-3 declaration and AR-3A in respect of imported HSD before filing a fresh D-3 declaration and AR-3A after receipt from IOCL on 15-11-96. If no D-3 declaration had been filed and AR-3A had not been submitted before 30-10-96 the day on which ex-bond bill of entry was filed a customs duty was paid, it becomes quite clear that there were no imported goods to be clea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
