GST Helpdesk   Subscription   Demo   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
What's New Case Laws Highlights Articles News Forum Short Notes Statutory TMI SMS More ...
Extracts
Home List
← Previous Next →

2016 (3) TMI 939 - BOMBAY HIGH COURT

2016 (3) TMI 939 - BOMBAY HIGH COURT - 2016 (337) E.L.T. 335 (Bom.) - Refusal of refund of duty paid under protest - Duty demanded for cost recovery charges - No challenge to the adjudication by the competent authorities of the amounts - Held that:- there was no statutory Appeal filed from the demand for bonding costs claimed by the competent authority upon assessment. So, as no Appeal has been preferred against such adjudication, the question of filing an application for refund of the amount wo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ned Counsel appearing for the Appellant and Shri C. A. Ferreira, learned Counsel appearing for the Respondent. 2. The above Appeal challenges the Order dated 15.10.2009 in Appeal no. C-1140/2008 passed by the Customs Excise and Service Tax Appellate Tribunal, Mumbai. Upholding the Order dated 16.07.2008. 3. The Appeal was admitted by an Order dated 13.07.2010 on the following substantial question of law : "Whether the Appellate Tribunal was right in holding that the claim for refund of cost .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tional, life and sound equipments for use in the manufacturing process and were granted licence bearing no. 01/04 dated 27.01.2004 which was renewed up to 31.12.2007 under Sections 58 and 66 of the Customs Act, 1962 for deposit of the imported dutiable goods in a private bonded warehouse and utilization of such goods in terms of Regulation 5 of the Manufacture and other Operations in Warehouse 1966 on execution of the bond, and the sanction was accorded to the Appellants to carry out manufacturi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

was issued by the Respondents at the request of the Appellants for debonding of the vessel. An application filed by the Appellants to refund of the amount paid was rejected by the Assistant Commissioner vide letter dated 03.03.2008. Being aggrieved by the said refusal for the refund, the Appellants preferred an Appeal before the Commissioner of Appeals which was dismissed by an Order dated 16.07.2008. Being aggrieved by the Order of the Commissioner, the Appellants preferred an Appeal before the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

vertheless, there was no decision arrived at by the competent authorities fixing the amount payable by the Appellants. Learned Counsel as such pointed out that the Appellants were entitled to seek the refunds of the amounts which the Appellants were not liable to pay from the concerned authorities. Learned Counsel has thereafter taken us through the impugned Orders passed by the authorities as well as by the Appellate Tribunal to point out that this aspect has not at all been correctly considere .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

was no speaking Order assessing the amounts payable by the Appellants. Learned Counsel has relied upon the Judgment of the Apex Court reported in AIR 1962 SC 1314 in the case of Sir Chunilal V. Mehta & sons Ltd. vs. Century Spinning and Manufacturing Co. Ltd. Learned Counsel has further submitted that the Appellants sent a letter, inter alia, stating that the excessive amounts were paid towards the cost recovery based on a demand by the Respondents which the Assistant Commissioner by Order .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rned Counsel further pointed out that these findings of the authorities below are totally erroneous and, as such deserves to be quashed and set aside. Learned Counsel further pointed out that on these technical grounds, the refunds which the Appellants are entitled should not be refused and, as such, the impugned Order be quashed and set aside. 6. On the other hand, Shri C. A. Ferreira, learned Counsel appearing for the Respondent, has supported the impugned Orders. Learned Counsel has pointed o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

without a speaking Order is an Order which has to be challenged. 7. We have carefully considered the submissions of the learned Counsel and we have also gone through the records. In the present case, it cannot be disputed that a demand was raised by the Assistant Commissioner for the payment of cost recovery charges. Section 128 of the Customs Act, reads thus : "Section 128: Appeals to Commissioner(Appeals)-(1) Any person aggrieved by any decision or order passed under this Act by an Offic .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." 8. On plain reading of the said provisions, a decision or Order passed under the Act, can be challenged by filing an Appeal be .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

k (India) Pvt. Ltd., observes at para 10 thus : "10. Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicatin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

w taken by us also gain support from the provision in Sub-rule (3) of Rule 11 wherein it is laid down that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer, may refund the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act. Therefore, an order which is appealable under .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the case of Karan Associates vs. Commissioner of Customs (import) Mumbai, has held at Paras 7, 8, 9 and 11 thus : "7. In the present case, admittedly, the appellant had cleared the imported goods on 30/1/2003 on payment of duty as assessed without any protest. Though the appellant by a letter dated 11/2/2003 requested the assessing officer to pass a reasoned order, it appears that a speaking order has not been passed in the matter. However, the fact that the assessing officer has failed to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e assessment order stands the question of granting refund does not arise at all. 8. The argument of the appellant that unless an appealable speaking order is passed, the importer cannot file an appeal against the assessment order is without any merit. Assessment order passed on the bill of entry is an appealable order and the same can be challenged even in the absence of a speaking order. In other words, in the absence of a speaking order, it cannot be said that the assessment order is not appea .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

id as per the assessment order. 9. Strong reliance was placed by the Counsel for the appellant on the decision of the Apex Court in the case of Karnataka Power Corporation Ltd. v. Commr. Of Cus. (Appeals), Chennai reported in MANU/SC/0633/2002: 2002 (143) ELT 482 (SC) followed by the Tribunal in the case of Telco Ltd. (supra). Both the aforesaid decisions have no relevance to the facts of the present case, because, in both the above cases, the Apex Court as well as Tribunal have remanded the mat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Latest Notifications:

    Dated      Category

20-7-2017 Cus (NT)

18-7-2017 IT

18-7-2017 CE (NT)

18-7-2017 CE

18-7-2017 GST CESS Rate

15-7-2017 Kerala SGST

14-7-2017 Andhra Pradesh SGST

14-7-2017 Cus (NT)

14-7-2017 Cus

13-7-2017 Co. Law

13-7-2017 Co. Law

13-7-2017 ADD

13-7-2017 ADD

12-7-2017 Jammu & Kashmir SGST

12-7-2017 Gujarat SGST

12-7-2017 Gujarat SGST

12-7-2017 CGST Rate

12-7-2017 UTGST Rate

12-7-2017 UTGST Rate

12-7-2017 IGST Rate

More Notifications


Latest Circulars:

19-7-2017 Income Tax

18-7-2017 Customs

17-7-2017 Customs

14-7-2017 Income Tax

13-7-2017 Central Excise

13-7-2017 Customs

13-7-2017 Central Excise

13-7-2017 Customs

7-7-2017 Income Tax

7-7-2017 Goods and Services Tax

More Circulars



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version