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Sesa Goa Ltd. Versus Commissioner of Customs, Goa

2015 (5) TMI 879 - BOMBAY HIGH COURT

Denial of refund claim - Where and admittedly there is a nil assessment order, whether the assessee is entitled to claim refund without making a challenge to such assessment order - Held that:- As the provisional assessment as well as the final assessment in respect of all the bills of entry were nil assessment, the question of raising a challenge to the said orders before the Appellate Authority would not arise at all. The appellant cannot be said to be aggrieved by the said orders and conseque .....

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n such circumstances, we find that the reliance by the Commissioner (Appeals) and CESTATE on the judgment of the Apex Court in the case of Priya Blue Industries Ltd. (2004 (9) TMI 105 - SUPREME COURT OF INDIA) is not justified in the present case. - appellant cannot be said to be aggrieved with the correctness of the order of nil assessment. The order sanctioning refund passed by the Assistant Commissioner dated 14/12/2007 is accordingly justified. Consequently, the orders passed by the Commissi .....

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for the parties that when the matter was admitted, there was no substantial question of law framed. Hence, by consent of the learned Counsel for the parties, following substantial question of law is framed : "Where and admittedly there is a nil assessment order, the assessee is entitled to claim refund without making a challenge to such assessment order ?" 3. Shri Ramani, learned Counsel appearing for the appellant in support of the above appeal has pointed out that though provisional .....

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her points out that with regard to other bill of entry dated 02/03/2007, the appellant has paid a sum of ₹ 4,75,191/-. Learned Counsel further points out that all these amounts were paid by the appellant under protest. Learned Counsel further points out that by an order dated 14/12/2007 passed by the Assistant Commissioner of Customs & Central Excise Anti Smuggling Unit, the amounts paid by the appellant under protest were ordered to be refunded to the appellant. Learned Counsel furthe .....

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ribunal (CESTAT, for short) to challenge the order of the Commissioner (Appeals) which appeal came to be rejected. Learned Counsel further points out that as such, the appellant has preferred the above Appeal to quash and set aside the orders passed by the Commissioner (Appeals) as well as CESTATE as according to him, the said orders are incongruous. Learned Counsel further points out that the Commissioner (Appeals) has relied upon the judgment of the Apex Court in the case of Priya Blue Industr .....

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Officer, the question of challenging the said order would not arise. Learned Counsel also points out that the CESTAT Authorities have also taken note of the fact that in case the appellant desires to seek reasons for such assessment order, it was incumbent upon the appellant to pray for reasons for such orders. Learned Counsel further submits that the substantial question of law framed by this Court be answered in favour of the appellant. 4. Shri C.A. Fereira, learned Counsel appearing for the .....

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reasons for such assessment orders, it was incumbent upon him to pray for such reasons in terms of provisions of Section 17(5) of the Customs Act, 1962 (the Act, for short). Learned Counsel, as such, submits that the appeal be rejected. 6. We have duly considered the submissions of the learned Counsel and we have also gone through the record. 7. The contention of Shri Ferreira, learned Counsel appearing for the respondent that the appellant should have prayed for reasons from the Proper Officer .....

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where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be." 8. A plain reading of the said provision shows that it was incumbent upon the authority to pass a speaking order giving reasons and as such, the question of seeking reason as claimed by the respond .....

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orders and consequently, the question of filing any appeal would not arise. The judgment of the Apex Court relied upon by the authorities which levied duties, would not be applicable to the present case. In the cases before the Apex Court, there was an assessment order levying duty which was not challenged. This is not the situation in the present case. In the present case, the assessment order was a nil assessment and no duties were levied and as such, the appellant cannot be said to be aggriev .....

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dgment in the case of Priya Blue Industries Ltd. (supra), the Delhi High Court has taken a view that once the party is not aggrieved by the assessment order, the question of preferring an appeal challenging the said order would not arise. We are in respectful agreement with the observations in paragraph 5 of the judgment which is as under : "5. The Tribunal has referred to the cases of CCE, Kanpur v. Flock (India) Pvt. Ltd. MANU/SC/0484/2000 : 2000 (120) ELT 285 and Priya Blue Industries Lt .....

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