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2015 (11) TMI 1400 - CESTAT BANGALORE

2015 (11) TMI 1400 - CESTAT BANGALORE - 2016 (341) E.L.T. 131 (Tri. - Bang.) - Denial of refund claim - Reassessment in terms of Section 17 (4) of the Customs Act - Provisional assessment - Held that:- Once an assessment is kept open, and resultantly provisional, the same would be provisional for all the aspects. It cannot be said that the assessment was finalized vis-a-vis a legal issue of addition of export duty in the assessable value and was provisional for the other aspects. Such assessment .....

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the refund claim by praying for reassessment of the order, which the Assistant Commissioner has himself allowed. The non-challenge to such an order, before filing the refund claim, would not act as rebuttal to the assessee’s claim. - no justifiable reason to interfere in the impugned order of Commissioner (Appeals). - issue of inclusion of export duty in the assessable value of the final product to be exported is not in dispute and also stands settled by the Board’s Circular dated 10.11.2008. A .....

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has filed the present appeal. We have heard Shri N. Jagadish, learned A.R. for the Revenue and Shri M.S. Nagaraja, learned advocate for the respondents. 2. As per facts on record, the respondent filed a shipping bill dated 11.07.2008 for export of iron ore lumps by declaring per MT value of the same. As in terms of the contract, the respondent was to get US$ 128.70 towards export duty, Revenue entertained a view that the said duty is required to be added in the assessable value of the goods eve .....

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OB as cum-duty price. Based upon the same, the respondent filed refund of excess paid export duty of ₹ 39,16,281/-. The said refund claim of the respondent was rejected by the original adjudicating authority on the sole ground that the assessee has not challenged the assessment order and as such in terms of the law declared by the Honble Supreme Court, refund cannot be entertained. 4. On an appeal, against the above order, Commissioner (Appeals) took note of the fact that the order of Ass .....

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observed that in terms of the Board s Circular No. 18/08 dated 10.11.2008, there was a direction to the assessing authorities to finalize all pending assessment and as such it was incumbent upon the Assistant Commissioner to have suo moto reassessed the goods under Section 17(4) of the Customs Act. He accordingly by referring to various decisions allowed the appeal. 5. The said order stands appealed against by the Revenue. 6. It is seen that there is no dispute about the merits of the case. The .....

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M/s ILC Industries Ltd, Hospet are liable to pay export duty of ₹ 4,74,87,851/- on the transaction value of ₹ 31,65,65,670/- in respect of Shipping Bill No. 42/2008-09 dated 11.7.2008. It is also ordered the order of assessment of duty is subject to reassessment under Section 17(4) of the Customs Act, 1962 in case there is any change in the Fe content and moisture content resulting in realization higher amount at FOB/assessable value without prejudice any other action that may be ta .....

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t that the assessment was subject to the outcome of the customs examination report in regard to moisture and iron content. Once an assessment is kept open, and resultantly provisional, the same would be provisional for all the aspects. It cannot be said that the assessment was finalized vis-a-vis a legal issue of addition of export duty in the assessable value and was provisional for the other aspects. Such assessment has been rightly held to be not a final assessment by the Commissioner (Appeal .....

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