TMI Blog2018 (7) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... unal’s order had attained finality, there was no option for the appellant except challenging the final assessment order, but the appellant has failed to file any appeal. The appellant are not entitled for the refund - appeal dismissed - decided against appellant. - C/57/2009-DB - A/11147 /2018 - Dated:- 7-6-2018 - Mr. Ramesh Nair, Member (Judicial) and Mr. Raju, Member (Technical) For Appellant: Mr. Hardik Modh (Advocate) For Respondent: Mr. L. Patra (A.R.) ORDER Per: Ramesh Nair The facts of the case are that the appellant imported crude palm oil, degummed soya bean oil, sun flower oil and cotton seed oil in bulk for which the appellant filed 13 bills of entry. The ullage quantity being in each case more than the quantity shown in the bill of lading, duty was paid on the ullage quantity. In the course of time, the out-turn (shore tank) reports were issued on 08.08.2001 by the custodian of the oil and the quantity of oil received in each case was reported less than the quantity in the respective ullage reports on which the duty was initially paid. The appellant paid the duty in excess as compared to what the appellants were required to pay based on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of the above order took up the 13 protective SCNs dated 11.02.2005 for adjudication once again in remand proceeding. The Deputy Commissioner of Customs thereafter passed the order in original No. 15/KS/VC/Refund IMP SEZ/2006-07 dated 25.07.2007 confirming the demand raised in the protective SCNs. The appellant preferred an appeal before the Commissioner (Appeals) challenging the order in original dated 25.07.2007 passed by the Deputy Commissioner of Customs. The Commissioner of Customs (Appeals) by an order dated 15.12.2008 upheld the order dated 25.07.2007 and dismissed the appeals filed by the appellants, therefore, the present appeal. 2. Sh. Hardik Modh, Ld. Counsel appearing on behalf of the appellant submits that the Ld. Commissioner passed the impugned order on the ground that the appellant did not challenge the assessment of bill of entry finally assessed. He submits that the decision cited by the Ld. Commissioner in the case of Priya Blue Industries Ltd. is not applicable for the reason that the appellant paid the excess duty on the quantity which has not been imported, more over the appellant borne the duty, therefore, in such case, there is no necessity to chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund itself at that stage was premature. Moreover, in the department s appeal, the Commissioner (Appeals) set aside the refund sanctioning order and directed the adjudicating authority to provide the final assessment order, against which the appellant filed appeal before the Tribunal wherein the Tribunal passed the following order: 4 . Commissioner (Appeals), accepted the assessee s plea that the final assessment order was never communicated to them and as such, it was impossible for them to challenge the same. Accordingly, he directed the lower authorities to communicate the final assessment order to the appellants so as to enable them to file an appeal their against. The said order is appealed before us. 5 . After hearing both the sides, we find that the issue as to whether refund claims can be filed without challenging the assessment orders stand settled by the Hon ble Supreme Court decision in the case of Priya Blue Industries Ltd. [2004 (172) E.L.T. 145 (S.C.)] as also by the Larger Bench decision of the Tribunal in the case of Commissioner of Customs (Imports), Nhava Sheva v. Eurotex Indus. Exports Ltd. [2007 (216) E.L.T. 137 (Tri. - LB)]. However, the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t available with the lower authority. In fact what was submitted, along with the appeal papers, was a copy of bill of entry endorsing final assessment was not available with the lower authority. In fact what was submitted, along with the appeal papers, was a copy of bill of entry with the following endorsement. (emphasis supplied) As per record this b/e has been finally assessed on 22-4-2004 Under these circumstances it is difficult to hold that the importer / respondent could have challenged the so called final assessments. As is seen the refund claims sanctioned by the original adjudicating authority have been set aside on the technical ground of non filing of appeal against the assessment order, even after observing that such assessment orders were never communicated to the assessee. In identical facts and circumstances, the Tribunal had an occasion to deal with the issue. In the case of C.C. C.E., Visakhapatnam v. Ruchi Infrastructure Ltd. [2008 (224) E.L.T. 477 (Tri. - Bang.)], Tribunal has observed that filing of refund claims even before the final assessment, amounts to challenging the assessment, especially when the issue on merits is no more res integra. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t rejected the refund claim in its totality on the ground of non-challenge of assessed bill of entry but has very judiciously directed the Revenue authorities to serve a copy of the assessed bill of entry to the appellant so as to enable them to challenge the same. This was not the case in the Tribunal s decision in Ruchi Infrastructure relied upon by ld. Advocate. As such, it can be safely concluded that the ends of justice is satisfactory delivered and no prejudice can be said to have been caused to the appellant by the directions of the appellate authority. 6 . However, we are not aware, as to whether, such communication has been made or if made, whether any challenge has been to the same. As there is no dispute about the merits of the case and the appellant have already been given an opportunity to challenge the assessment order, which is only a procedural and technical aspect, we uphold Commissioner (Appeals) order containing directions to serve copy of assessed Bills of Entry to the appellant. If the same has not been done by the Revenue, awaiting decision in the present appeal, the same may be served now on receipt of the order and shall be challenged by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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