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2016 (8) TMI 27 - CESTAT MUMBAI

2016 (8) TMI 27 - CESTAT MUMBAI - TMI - Refund of duty in excess, under protest - The claim had been rejected by the Assistant Commissioner (Refund) on the ground that the importer had not challenged the assessment, an essential pre-requisite laid down in the decision of the Hon’ble Supreme Court in Priya Blue Industries Ltd v. Commissioner of Customs (Prev.) [2004 (9) TMI 105 - SUPREME COURT OF INDIA]. - Held that:- It is seen that the refund application made on 9th April 2012 was returned as p .....

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orfeited the right to do so when the alteration in circumstances favoured the importer's claim. - The dispute on taxability stands settled in favour of the importer for the period from 2001 to 2005. That resolution of the dispute is equally applicable to subsequent imports. - Refund allowed - Decided against the revenue. - APPEAL No. C/90078/2014 - Order No. A/88440/16/SMB - Dated:- 22-1-2016 - Shri C J Mathew, Member (Technical) Shri M.K. Mall, Asstt. Commissioner (AR) for the appellant .....

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ills of entry were filed between 5th September 2006 and 13th February 2008. The claim had been rejected by the Assistant Commissioner (Refund) on the ground that the importer had not challenged the assessment, an essential pre-requisite laid down in the decision of the Hon ble Supreme Court in Priya Blue Industries Ltd v. Commissioner of Customs (Prev.) [2004 (172) ELT 145 (SC)]. There does not appear to be any dispute that duty to the extent claimed had been discharged. It would appear that the .....

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rejection on the ground of applicability of the decision of the Hon ble Supreme Court in re Priya Blue Industries supra without furnishing appealable order was improper. The specific circumstances of setting aside the rejection of refund claims are: 8. ... However, I agree to the stand of the adjudicating authority that in such cases, there is a requirement of challenging the assessment, as based on another case of previous import, the appellant cannot directly seek refund because, as held in th .....

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oks absurd at first sight, but the legal tangles, where justice needs to be delivered, have to be mitigated by following the course of remedies prescribed. 9. It is evident from record that the Order-in-Original was passed rejecting the refund claim without issuing the show-cause notice and not giving any opportunity to be heard in person. It is well settled law that before passing a speaking order the show-cause notice should be issued and personal hearing should be held. There is clear violati .....

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it they get a favourable order, file refund claim afresh under the provision of Section 27 of the Customs Act, 1962. I would like to make it clear that setting side of the impugned order at this point would not entitle them to refund. The appellant s appeal for passing of speaking order is acceptable and is allowable to this extent only. 4. Revenue is aggrieved by the above order-in-appeal. It is submitted that no request for speaking order was made by the importer and no challenge to the asses .....

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ty for revival of the appellate remedy available to the importer. It was also contended that, having referred to the decision of the Hon ble Supreme Court in re Priya Blue Industries (supra), the first appellate authority had contradicted itself by accepting the protest as justification to set aside the order of lower authority. 5. Heard the Learned Counsel for the respondent. 6. Having considered the rival contentions, it may not be out of place to travel back in time to trace the genesis of th .....

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under protest. For the bills of entry filed between September 2006 and February 2008, importer claimed refund vide application dated 9th April, 2012 which was returned as premature by letter dated 17th June 2013 and was resubmitted on 19th August 2015. It would appear that the claim was categorised as premature because the order of Commissioner of Customs & Central Excise, Goa, which, in the proceedings to recover duty on imports for 2001 to 2003 having been dropped, was pending for decisio .....

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to 2005. Bills of entry for the subsequent period, during the pendency of the notice before the Commissioner of Customs, was assessed to higher duty by the Asstt./Dy. Commissioner of Customs. Even if the assessments were deemed to be appealable notwithstanding the absence of a speaking order, such appeals would lie before Commissioner (Appeals). It would not be incorrect to describe as preposterous any expectation on the part of the importer to entertain hopes of settlement of the dispute by the .....

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ssessments of subsequent imports by separate appeals does not alter the factual matrix of the subjecting of this dispute in assessment to the appellate process. In view of the dropping of proceedings for the period between 2001 and 2005, the outcome of an appeal before Commissioner (Appeals), too, cannot be in doubt. The contents of a speaking order to be issued by the assessing officer, given the dropping of demand by Commissioner of Customs, does not leave much to imagination. 10. Notwithstand .....

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