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2015 (11) TMI 83 - CESTAT MUMBAI

2015 (11) TMI 83 - CESTAT MUMBAI - 2016 (335) E.L.T. 693 (Tri. - Mumbai) - Refund of Cess claimed Import natural rubber Refund rejected on grounds that assessment made in Bills of Entry were appealable and had attained finality, no appeal having been filed and in some cases refund were time barred and all cases were hit by unjust enrichment Appellant contended that refund claims are admissible when there is no assessment order on dispute - Assessment by assessing officer resulting in payme .....

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omission - CVD duty was paid equivalent to cess as was understood by department as well as appellant thus Section 154 does not cover the case - no rectification of assessment order was ever sought by appellant Matter already decided against appellant on first two issue thus Court does not find it necessary to discuss third issue i.e unjust enrichment Decided against the assessee. - APPEAL NO. C/788, 789/04 - Final Order No. A/2763-2764/2015-WZB/CB - Dated:- 6-8-2015 - Mr. P.S. Pruthi, Membe .....

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ubber. Therefore appellant filed refund claim on 4/9/2003 against duty already paid by them. Asstt. Commissioner held that the refund is not admissible because (i) the assessment made on the Bills of Entry were appealable and had attained finality, no appeal having been filed. (ii) In some cases the refund were time barred and (iii) all cases were hit by unjust enrichment. Ld. Commissioner (Appeals) upheld the order of the Asstt. Commissioner. 3. It is the plea of the Ld. Counsel that in terms o .....

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Court on 1/12/1997 in SLP CC 8715/1997. He also relied on the case of Benet Coalman and Company Vs. Commissioner [2008(232)ELT 367] which held that assessment by the assessing officer resulting in payment of duty when the goods were exempted, is a case of sheer omission on the part of the assessing officer. As regards the unjust enrichment, the Ld. Counsel contended that they had submitted a Certificate from the cost accountant certifying that the amount of cess was not charged in the profit an .....

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is itself an order of assessment and therefore the limitation period will apply from the date on which duty was paid. He also relied on Board Circular No. 24/2004 dated 18/3/2004 and case of AVA Food Ltd. Vs. Commissioner [2007-TIOL-894-CESTAT]. As regards the time bar aspect, he stated that in the case of Union of India Vs. Kirloskar Pneumatic Company[1996(84) ELT 401(S.C.)] it was held that Customs Authority could not be directed to ignore or act contrary to Section 27 of the Customs Act. Las .....

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ience. 27. Claim for refund of duty. - (1) Any person claiming refund of any duty- (i) paid by him in pursuance of an order of assessment; or (ii) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs We find that in the case of Aman Medical Products(Supra), it was held that 5. The Tribunal has referred to the cases of CCE, Kanpur v. Flock (India) Pvt. Ltd. [2000 (120) E.L.T .....

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a claim for refund on the ground that adjudicating authority had committed an error in passing his order. These judgments will therefore not apply when there is no assessment order on dispute/contest, like as is in the facts of the present case . We are not able to appreciate the Hon ble High Court judgment in the face of the Honble Supreme Court Judgment in case of Escorts Ltd.(supra) wherein the Apex Court held that The bill of entry presented by the appellant was signed, signifying approval .....

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Government of India, had no option but to dismiss the appellant s application. This is also the view taken by this Court in Madras Rubber Factory v. Union of India [1983 (13) E.L.T. 1579 (S.C.) = 1976 (2) SCC 86] The Honble Supreme Court decision takes precedence over the High Court Judgments. In our view the decision of Apex Court in the case of Priya Industries Ltd. (supra) puts the issue beyond the doubt. The Supreme Court held that once the order of the assessment is passed and unless that .....

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ent of Apex court in Kirloskar Pneumatic Company(supra) in which it was held that The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to Section 27, wheth .....

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errors, etc. Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be. It is sought to be argued that the error has arisen in the present case from the accidental slip or omission. We find t .....

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