TMI Blog2015 (4) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... (8) TMI 88 - SUPREME COURT OF INDIA] and Priya Blue Industries case (2004 (9) TMI 105 - SUPREME COURT OF INDIA) are squarely applicable to the facts of the present case. - Decided in favor of revenue. - C.M.A. NO. 3193 OF 2008 - - - Dated:- 20-3-2015 - R.Sudhakar And R.Karuppiah JJ. For the Appellant : Mr. E.Vijay Anand For the Respondents : No Appearance Judgment (Delivered By R.Sudhakar, J.) Aggrieved by the order of the Tribunal in allowing the appeal filed by the assessee, the appellant/Revenue is before this Court by filing the present appeal. This Court, vide order dated 31.10.08, while admitting the appeal, framed the following substantial question of law for consideration :- Whether re-assessment can be permitted at the refund stage when the order of assessment is final and not appealed against or not? 2. The facts, in a nutshell, are as hereunder :- The first respondent claimed refund of Special Additional Duty (for short 'SAD') on re-importation of CNC Lathe Machine Model LT-20C under Bill of Entry No.024656 dated 13.08.01. The goods were assessed to 'NIL' rate of customs duty, 16% of excise duty and 4% SAD. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian goods does not hold because Section 20 of CA 62, as it stands at present, does not distinguish the imported and re-imported (indigenous goods exported and re-imported) goods, for levying the duties of Customs under Section 12 of CA 62. Reimported Indian goods are treated of CA 62 subject to condition and restriction as prescribed. In the instant case, Notification 94/96 only still applicable but Notification 18/2000 will not be applicable. Hence, I pass the following order :- ORDER In view of the above findings, I reject the refund claim of M/s.ACC Designers for refund of SAD for ₹ 66,528/= (Rupees Sixty Six Thousand Five Hundred and Twenty Eight only) against their Bill of Entry No.24656 dated 13.08.01. 3. Aggrieved against the said order, the 1st respondent preferred appeal before the Commissioner (Appeals), who also dismissed the appeal of the 1st respondent holding that the goods were assessed by the proper officer based on the claim made by the assessee in terms of Notification No.94/96-Cus. and the Notification No.18/2000-Cus. dated 1.3.2000, on which the importer relied upon for making the claim for refund, for the first time, is contrary to the claim in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported under bond without payment of Central Excise duty and have been subsequently imported have been obviously charged to additional duty of Customs equal to the Central Excise duty and that basic Customs duty and special Customs duty is exempted. Going by the ratio of the judgment, I do not find any infirmity or incongruity in the order of assessment, charging the impugned goods to additional duty of Customs equivalent to the Excise duty. 5. The foremost and primary plea of the appellant that SAD is applicable only to goods which are imported originally and not on re-imports was rejected by the Commissioner (Appeals), the relevant portion of which is extracted hereinbelow for better clarity :- The appellant has also contended that SAD is applicable only to goods which are imported originally. Levy of special additional duty is governed by the provisions enshrined in Section 3A of the Customs Tariff Act, 1975. The provisions covered under the Section do not expressly distinguish between import of indigenous and non-indigenous products nor do they exempt re-import of indigenous goods from levy of SAD. In the circumstances, the contention of the appellant is not legally ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pex Court in the case of M/s.Super Cassette Industries Ltd. (2004 (183) ELT A116 (SC)). In the circumstances discussed above, the order of assessment, in pursuance to which the duty was paid by the appellant, stands and no refund of duty accrues to the claimant as these orders of assessment are not modified or reviewed by an appeal. 7. Aggrieved against the order of the Commissioner (Appeals), the 1st respondent filed appeal before the Tribunal. The appeal, however, came to be allowed by the Tribunal on the premise that the case of the assessee is covered by the decision of the Supreme Court in Karnataka Power Corporation Ltd. - Vs - Commissioner of Customs (Appeals), Chennai (2002 142 ELT 482). However, the decisions of the Supreme Court in Priya Blue Industries case and Flock (India) Pvt. Ltd. case (supra) have not been discussed by the Tribunal. However, by a cryptic order, the appeal was allowed in favour of the 1st respondent, against which the appellant/Revenue is before this Court by filing the appeal. 8. The learned standing counsel appearing for the appellant/Revenue submits the 1st respondent having not challenged the order of assessment, the claim for refund is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (120) ELT 285 (SC)), held as follows :- 5. Under Section 27 of the Customs Act, 1962 a claim for refund can be made by any person who had (a) paid duty in pursuance of an Order of Assessment or (b) a person who had borne the duty. It has been strenuously submitted that the words in pursuance of an Order of Assessment necessarily imply that a claim for refund can be made without challenging the Assessment in an Appeal. It is submitted that if the assessment is not correct, a party could file a claim for refund and the correctness of the Assessment Order can be examined whilst considering the claim for refund. It was submitted that the wording of Section 27, particularly, the provisions regarding filing of a claim for refund within the period of 1 year or 6 months also showed that a claim for refund could be made even though no Appeal had been filed against the Assessment Order. It was submitted that if a claim for refund could only be made after an Appeal was filed by the party, then the provisions regarding filing of a claim within 1 year or 6 months would become redundant as the Appeal proceedings would never be over within that period. It was submitted that in the claim for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had sought for amendment before the Assistant Commissioner of Customs and in that view of the matter, refund was claimed. Therefore, the issue was at large before the competent authority. The facts, as narrated above, would reveal that the decision in Karnataka Power Corporation case (supra) relied on by the Tribunal is distinguishable on facts, as the issue on classification as well as refund was at large before the appellate authority. However, in the case on hand, such is not the case, as the order of assessment has not been challenged and the assessment has reached finality. 14. The distinction, as detailed above, which is evident from the facts of the present case, has not been appreciated in its proper perspective by the Tribunal while arriving at the decision. 15. The decision of the Delhi High Court, brought to the notice of this Court at the time of hearing in Aman Medical Products case (supra) is a case where the assessee paid higher rate of duty due to inadvertence without there being an order of assessment and in such a dispute, the question before the Court was whether the payment of duty will deprive the importer of his right to file refund under Section 27 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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