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TMI Blog2016 (9) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... mporter paid the assessed duty and filed a claim for refund of Rs. 20,46, 849 being the differential additional duty of customs paid in consequence. The scheme entitles the importer to exemption of basic customs duty upto a value specified in the licence and the importer is charged with the additional duty of customs. Re-credit of excess value of Rs. 1,26,66,127 arising from enhancement of assessable value was also sought. 3. The Assistant Commissioner of Customs (Group VII) who had examined the claim for refund declared himself to be lacking in jurisdiction to revisit an assessment that had attained finality owing to absence of challenge to it and ventured to render the opinion that the remedy for grievances relating to assessment was to file an appeal before the Commissioner (Appeals) under section 128 of Customs Act, 1962. While thus disposing off the claim under section 27 of Customs Act, 1962, the original authority did not hold any part, or parts, of the claim to be barred by limitation prescribed therein. The rejection was also rendered without citing any statutory provision, administrative instruction or case law to justify the conclusion. 4. From the records available wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the decision of the Tribunal in Bengal Tools Ltd v. Commissioner of Customs, Calcutta [2003 (109) ECR 252 (Tri.)] and TELCO Ltd v. Commissioner of Customs, Mumbai [2003 (158) ELT 640 (Tri.-Mumbai)] and that of the Hon'ble Supreme Court in Karnataka Power Corporation Ltd. v. Commissioner of Customs [2002 (143) ELT 482] as well as the order dated 11th September 2001 incorporated in Customs Manual of Instruction issued by Central Board of Excise & Customs. The first appellate authority went on to render a finding that the enhancement was not only procedurally flawed but also not legally sustainable owing to lack of recorded evidence for doubting the declaration at the time of import. 6. It is the contention of Revenue that the first appellate authority had failed to take note of alternative decisions of the Tribunal, confirmed by the Hon'ble Supreme Court, that a refund application was not to be entertained without disputing assessment and had failed to appreciate that the decisions relied upon related to classification which was, in any case, remanded back to original authorities to resolve the dispute. Revenue also questions the propriety of the preference accorded& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in the hands of the assessing authority. It is also on record that the enhancement was disputed in the appeal filed before the first appellate authority. Considering the contents of the pleas in the appeal, as recorded in the appellate order, as well as the studied silence on the part of the reviewing authority in not disputing the finding on the impropriety of enhancement, the order directing the adoption of declared value is not questionable. The authority before whom the appeal against the rejection of refund claim was filed is the very same authority who was empowered to decide a challenge to assessment. That he chose to exercise his jurisdiction concurrently to restore the refund claim and decide on the assessment, as insisted upon by the lower authority as a pre-requisite, cannot, of itself, be considered improper. 9. We have noted supra that the finding against the assessment has not been contested on merit in the appeal of Revenue. The imports were effected over a period of time and the assessing authority had, as seen from the records, steadfastly refused to be held accountable for the revision in the assessable value. The importer was afforded the cause of act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and appellate authorities.' It is apparent that the enhancement of assessable value by the assessing officer was without authority. That lacuna cannot be rectified by mere access to appellate remedies through a 'bill of entry' as a cause of action. For the purposes of section 128 of Customs Act, 1962, however, 'assessment' and 'adjudication', though different, are orders or decisions. There is no contest to the findings on assessment recorded by the appellate authority. There is also submission to the effect that the appellate authority was barred by limitation to take up the issue for resolution. Accordingly, the scrutiny of the assessment by the first appellate authority is upheld on jurisdictional grounds as well as on merit. The cavil of Revenue that assessment was not disputed is, therefore, not sustainable with this substantive compliance of the pre-requisite agitated in the appeal before us. 11. A dispute in assessment can arise from adoption of a value or adoption of a rate of duty. In the imports of the respondent, the genesis was the adoption of uniform rate of US$ 1750 instead of the varying prices declared for each consignment. The issue in dispute is identical in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in Collector of Central Excise, Kanpur v. Flock (India) Pvt Ltd [2000 (120) ELT 285 (SC)] had been rendered by then; it was, however, in the context of a refund under the Central Excise Act, 1944 and the Assistant Commissioner did not even make a passing reference to that judgment as the authority for alienation of jurisdiction vested in him under section 27 of the Customs Act, 1962. It is worthwhile to reproduce the relevant portion of the judgment: "8. From the aforementioned provisions of the Act the position is clear that any order passed by an authority under the Act is appealable to the Collector (Appeals) and a further appeal to the appellate tribunal against the order of the Collector (Appeals) is also provided in section 35. The hierarchy of authorities for adjudication and determination of a matter relevant for charging the excise duty is for a purpose. It is not an empty formality. Classification of the goods manufactured by an assessee is important for the purpose of levy and collection of excise duty. Under Rule 173B every assessee is required to file with the proper officer a list of goods manufactured by him for approval and the proper officer shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed." 14. The Hon'ble Supreme Court has, juxtaposing the refund and appellate procedures in Central Excise Act, 1944, arrived at the conclusion supra. That the provisions of section 27 of Customs Act, 1962 and section 11B of Central Excise Act, 1944 are not pari materia has been the consistent claim in disputes relating to refund of import duties. The Tribunal, in its wisdom, had decided that such a pre-requisite be equally applicable to refunds claimed under section 27 of Customs Act, 1962. Notwithstanding the pendency of those disputes before the Hon'ble Supreme Court, the alienation by the original authority may have had some semblance of responsible behaviour had these been cited. This is a glaring lack. Revenue, on the other hand, cites circular no. 24/2004-Cus dated 18th March 2004 of Central Board of Excise & Customs as binding on all officers. This, in our view, does not suffice to justify the action of the lower authority as the alienation in the order-in-original was recorded without the benefit of this instruction. Prescience and premonition may have been endowed by nature on some special beings but they are anathema to the practical world of taxation. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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