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Archean Marbles & Tiles Pvt. Ltd Versus CC, Hyderabad

2017 (11) TMI 28 - CESTAT HYDERABAD

Refund claim - finality of assessment - Held that: - Hon’ble High Court of Delhi in the case of Micromax Informatics Ltd [2016 (3) TMI 431 - DELHI HIGH COURT] has dealt with similar issue which is present in the case in hand, where it was held that there was indeed no assessment order as such passed by the customs authorities. Although under Section 2(ii) of the Act, the word ‘assessment’ includes a self-assessment, the clearance of the goods upon filing of the B/E and payment of duty is not per .....

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cided in favor of appellant. - C/30626/2017 - A/31728/2017 - Dated:- 23-10-2017 - Mr. M.V. Ravindran, Member (Judicial) Sri Y. Srinivasa Reddy, Advocate for the Appellant Shri B. Guna Ranjan, Superintendent/AR for the Respondent ORDER [Order Per : Mr. M.V. Ravindran] 1. This appeal is directed against Order-in-Appeal No: HYD-CUS-000-APP-044-16-17, dated 20.06.2016. 2. Very briefly, the facts of the case are that appellant sought clearances of imported consignment of polished marbles under six bi .....

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ch were made during the period July October 2014, has attained finality and as the appellant has not challenged the same as per the provisions of Customs Act, 1962, the dismissal/rejection of the refund claim of the appellant seems to be in order. 3. Ld. Counsel submits that the issue is now settled by Hon ble High Court of Delhi in the case of Micromax Informatics Ltd Vs. Union of India [2016(335)E.L.T 446(Del.)] and submits that post 08.04.2011 amends to Section 27 of the Act has been gone int .....

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n in the case of bills of entries, the appellant has to follow the procedure as laid down by Supreme Court of India in the case of Escorts Limited [1998(97)ELT 211(S.C)] stating that this kind of assessment is across the counter and an order of assessment needs to be challenged and the same view has to be taken in the case in hand. He would submit that the ratio of judgments of the Apex Court in the case of Priya Blue Industries Limited and Flock (India) Pvt. Ltd. would be applicable directly in .....

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edly, appellant had filed bills of entry on EDI and did not claim the benefit of refund, subsequently claims by way of refund to the lower authorities. I find that both the lower authorities have not considered the law as settled by Hon ble High Court of Delhi in the case of Micromax Informatics Ltd; Hon ble High Court in that case has dealt with similar issue which is present in the case in hand. I would with respect reproduce the relevant paras: 5. In the impugned order while rejecting the ref .....

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(172) E.L.T. 145 (S.C.) and Collector of Central Excise v. Flock (India) (P.) Ltd. - 2000 (120) E.L.T. 285 (S.C.) it was held that a refund claim contrary to the assessment order was not maintainable unless the assessment order was reviewed or modified in appeal. 6. This Court has heard the submissions of Mr. Tarun Gulati, learned counsel for the petitioner and Mr. Satish Kumar, learned counsel for the Customs. 7. It requires to be noticed that the decision in Priya Blue Industries Ltd. v. Commi .....

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B/Es filed by the importer. In Collector of Central Excise v. Flock (India) (P.) Ltd. (supra) again an assessment order had been passed. 8. In Aman Medical Products Limited v. Commissioner of Customs, Delhi (supra), a Division Bench of this Court was considering an instance of an importer having filed B/Es, paid customs duty and thereafter claimed refund under Section 27 of the Act. The question of law framed by the Court in the appeal filed by the assessee against an order of refusal of refund .....

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The initial payment of duty in terms of Section 27(1)(i) of the Act could be pursuant to an order of assessment or in terms of Section 27(1)(ii) of the Act could be borne by him. The Court explained : The object of Section 27(i)(ii) is to cover those classes of case where the duty is paid by a person without an order of assessment, i.e. in a case like the present where the assessee pays the duty in ignorance of a notification which allows him payment of concessional rate of duty merely after fil .....

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(supra) would not apply since those were cases where there is no assessment order on dispute/contest, like as is in the present case. It was held in Aman Medical Products Limited (supra) that the assessee was entitled to maintain the refund claim notwithstanding that there was no appeal filed against the assessed B/Es. 11. It is significant that with effect from 8th April, 2011, the structure of Section 27 of the Act has undergone a change. The relevant portions of Section 27, as amended with e .....

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he Finance Bill, 2011 receives the assent of the President, such application shall be deemed to have been made under sub-section (1), as it stood before the date on which the Finance Bill, 2011 receives the assent of the President and the same shall be dealt with in accordance with the provisions of sub-section (2) : Provided further that the limitation of one year shall not apply where any duty or interest has been paid under protest : Provided also that where the amount of refund claimed is le .....

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id by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty and interest, if any, paid on such duty as determined by the Assistant Commissioner of Customs or Deputy Commissioner of Customs under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) the duty and interest, if any, paid on such duty, .....

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n section 26; (e) drawback of duty payable under sections 74 and 75; (f) the duty and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to .....

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able to the applicant. The proviso to Section 27(2) of the Act sets out the instances where refund should be paid to the claimant instead of being credited to the Consumer Welfare Fund. The only relevance as far as payment of duty under protest is concerned is indicated in the second proviso to sub-section (1) of Section 27 of the Act which states that the limitation of one year shall not apply in such event. In other words, whether or not the duty is paid under protest once an application for r .....

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