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M/s. R. Piyarelall International Pvt. Ltd. Versus Commissioner of Customs (Port) , Kolkata

2016 (8) TMI 711 - CESTAT KOLKATA

Refund - duty paid on export of goods - whether refund claim can be lodged by an assessee without contesting the original assessments made - Held that:- In the present case once the duty was paid under protest, the onus was on the department to vacate the protest lodged by the Appellant giving an appealable order that the assessment made was in order and view of the appellant was incorrect, so that Appellant could redress their grievance. - In the interest of justice and principles of equity Ord .....

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C.Jena, ADC(AR) for the Revenue ORDER Per Shri H. K. Thakur This Appeal has been filed by the Appellant against Order-in-Appeal No. 414/CUS(Exp)/KOL(Port)/2014 dated 01.09.2014 passed by the Commissioner of Customs(Appeals), Kolkata as first appellate authority. 2. Shri S.C.Ratho (Consultant) and Shri B.Singh (Consultant) appeared on behalf of the Appellant. Shri S.C.Ratho (Consultant) argued that Appeal of the Appellant has been rejected by the first appellate authority on the grounds that asse .....

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ty under protest as per their letters dated 11.04.2012 and 12.04.2012. That since no communication was received by the Appellant vacating their protest, therefore, a refund claim was filed which was rejected by the Adjudicating authority under Order-in-Original dated 16.01.2014 and has also been upheld by Order-in-Appeal 01.09.2014 passed by the first appellate authority. Ld.Consultant argued that no appealable order finalizing the provisional assessment was issued by the department vacating the .....

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of export. 3. Shri K.C.Jena, ADC(AR) appearing on behalf of the Revenue relied upon the case law of Commissioner of Customs (Appeals) v. Ace Designers [2015 (329) ELT 109(Mad.)] where it has been held that refund cannot be claimed when the order of assessment was not challenged. It is the case of the ld.AR that while passing this Order Madras High Court has relied upon the case law of Priya Blue Industries Ltd. v. Commissioner [2004 (172) ELT 145(SC)] and Collector v. Flock (I) Ltd. [2000 (120) .....

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ssue involved in these proceedings is whether Appellant can file a refund claim without filing an Appeal against the assessments done on the bills of export. In the present proceedings a PD/ITC Bond was also executed by the Appellant at the time of making assessments. The duty assessed by the proper officer was paid by the Appellant under protest. No proceedings were initiated by the department for vacating the protest lodged by the Appellant and Appellant came forward with refund claim. Both si .....

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order sanctioning refund passed by the Competent authority. Following observations were made by the Apex Court in this case in para 13 :- 13. Section 11A provides for a right of issuance of show cause notice, if, according to the Department, duty of excise has been erroneously refunded to a party. In the event of such erroneous refund of excise duty, the competent authority may then issue such a show cause notice as provided for under Section 11 A, in which case the assessee has to show cause a .....

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