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2016 (1) TMI 514 - CESTAT AHMEDABAD

2016 (1) TMI 514 - CESTAT AHMEDABAD - TMI - Refund - export of Bauxite - duty was paid on the basis of Wet Metric Tons (WMT for short), whereas the appellants contention is that it should have been paid on the basis of Dry Metric Tons (DMT) in accordance with the Sales- Purchase Contract with the buyers of the goods. - Held that:- the shipping bill was assessed finally on the basis of information declared by the appellants themselves and since the assessments had become final, appellant’s claim .....

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aid duty under protest. - Refund not allowed - Decided against the assessee. - Appeal No.: C/10172,10174,10176,10177/2015 - ORDER No. A/10022-10025/2016 - Dated:- 8-1-2016 - Mr. P.M. Saleem, Member (Technical) For the Petitioner : Shri Paritosh Gupta, Advocate For the Respondent : Shri S.K. Shukla, Authorised Representative ORDER Per : Mr. P.M. Saleem M/s. Rawmin Mining and Industries Pvt. Limited, the appellants herein, have filed four appeals wherein the issue is common and therefore all the f .....

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e Contract with the buyers of the goods. The appellants had issued final invoices and the quantity was revised on the basis of DMT, and the value was worked out accordingly. He submits that export duty should, therefore, he on the basis of this DMT quantity and on the value thereof. Hence, there is excess payment and they are entitled for refund of the same. 3. In addition to the above issue, the impugned orders also deal with the refund due to shortage of goods, and the refund of Education Cess .....

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ed decision of the Hon'ble Supreme Court has been distinguished by the Hon'ble Delhi High Court in the case of Aman Medical Products Limited vs. Commissioner of Customs, Delhi - 2010 (250) ELT 30 (Del.) wherein the Hon'ble High Court held that where there is no lis between Revenue and party concerned, the refund application would be maintainable. He also relied upon the decision of the Tribunal in the case of Commissioner of Customs, Guntur vs. Sameera Trading Company - 2011 (264) EL .....

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i. Bang.) in this regard. Learned Counsel further submits that the lower authorities themselves had reopened assessment and have sanctioned the refund for the short quantity, and on the issue of Cess. 4. On the other hand, learned Authorised Representative submits that the appellants had filed the shipping bills under the Self Assessment Procedure. He draws the attention of the Bench to the scheme of Self Assessment and submits that Self Assessment is supported by Sections 17, 18 and 50 of the C .....

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ntioned of DMT or WMT. The FOB value is shown in both the invoices and shipping bills, on the basis of said weight declared in the said documents. He further submits that there is no dispute that the shipping bills were assessed finally, and there is no claim that the same has been assessed provisionally nor the duty has been paid under protest. He also draws attention of the Bench to the duty paying challans wherein there is no mention that it has been paid under protest or is covered under pro .....

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ed, refund claim cannot be entertained without challenging the assessment order. He relies upon the decisions of the Honble Apex Court in Collector of Central Excise vs. Flock (India) Pvt. Limited - [(2000) 6 SCC 650], Priya Blue Industries Limited vs. Commissioner of Customs (Preventive) - [2004 (172) ELT 145 (SC)], and the recent decision in the case of Commissioner of Customs, Bangalore vs. BPL Telecom Limited [2015 (325) ELT 467 (SC)], wherein the Apex Court reiterated the decisions in Floc .....

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amount paid as Cess, the learned Authorised Representative submits that the assessee paid the Cess on his own volition whereas there was no levy of Cess on the goods, and therefore the collection of the same by the department was without authority of law and hence the lower authorities immediately returned the same to the appellants. He contends that there is no reassessment of the shipping bills on this count also. 5. On consideration of the arguments of both sides and going through the relevan .....

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the case, we find that the appellants had cleared the goods by filing shipping bills pertaining to the period from March 2013 to January 2014. They were covered under the Self Assessment Scheme and had filed the shipping bills, assessed it and paid the duty mentioned in the shipping bills, on their own. They also did not claim provisional assessment, nor had they specifically brought it to the notice of the Customs Officers that as per the contract terms the goods are to be valued on DMT quanti .....

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Priya Blue Industries Limited (supra) is reproduced below:- 2. The facts necessary for the purposes of this Order are as follows : The Petitioners had imported a ship for breaking purposes. They filed a Bill of Entry. The amount of duty payable was assessed. The Petitioners paid the duty under protest. They then filed a Claim for refund of ₹ 79,64,648/- on the ground that duty had been wrongly levied. Their refund was rejected on 30th August, 2000. The Appeal filed by them was rejected on .....

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er dated 14th November, 2003. 3. As it has been contended that the provisions of the Customs Act, 1962 are not in pare-materia with the provisions of the Excise Act and that the Judgment of this Court in Flock (India) s case (supra) would not be applicable, notice was issued. 4. We have heard parties at great length. 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 .....

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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 refund the party could tak .....

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tands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order. 7. We also see no substance in the contention that provisions for a period of limitation indicates that a refund claim could be filed without filing an Appeal. Even under Rule 11 under the Excise Act th .....

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sment having been modified in Appeal or reviewed a claim for refund can be maintained. 6. We find that the Hon'ble Apex Court has taken a consistent view on the said issue as is reflected in the decisions of the Court in the case of Flock (India) Limited (supra), Priya Blue Industries Limited (supra) and in the recent case of BPL Telecom Limited (supra). The Hon'ble Supreme Court held in the said case as; Though initially dispute arose about classification of the goods in question, viz., .....

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Tax Appellate Tribunal (hereinafter referred to as CESTAT ) in the said appeal that the CESTAT has merely gone into the issue of classification and has not dealt with the issue which was really involved, viz., whether the respondent was entitled to refund or not. That appeal, in any case, against the order of rejection qua refund claim preferred by the assessee was not maintainable as held by this Court in Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) 7. The decision of the .....

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