9911796707
TMI Blog2019 (1) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... ber & Date TR-6 Challan No & Date Amount 1 85524 dtd 15.01.2010 10322879 dtd 19.01.2010 6905756 2 911004 dtd 23.02.2010 10364127 dtd 24.02.2010 861070 3 885303 dtd 05.02.2010 10345047 dtd 09.02.2010 3566825 11333651 2.2 The goods imported by the appellants as per them were exempted under Notification No 21/2002-Cus dated 01.03.2002 Sl No 155). However inadvertently they filed the Bill of Entry and assessed the goods without claiming the benefit of said exemption. They paid the duty assessed. 2.3 Later on realizing their mistake they filed the refund claim in respect of the duty paid by them in respect of the goods imported by them under the said three B/E's, by claiming the benefit of exemption under notification No 21/2002-Cus. 2.4 The refund claim filed by the appellants was rejected by the Deputy Commissioner holding as stated in para q, supra. On appeal Commissioner (Appeal) upheld the order of Deputy Commissioner. 2.5 Aggrieved by the order of Commissioner (Appeal), Appellants are in appeal before us. 3.1 We have heard Shri A B Nawal Advocate for the appellant and Shri Roopam Kapoor, Commissioner (Authorized Representative) for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing aside the assessment done under Section 17 of the Customs Act, 1962. As such a Personal Hearing was held on 15.11.2010 when Mr. Venktesh Iyer, Consultant appeared for the same. During the Personal Hearing he submitted that the authorization letter has already been submitted along with the refund application, the exemption Notification No.21/2002-Cus. dated 01.03.2002 (Sr.No. 155) was in existence on the day filing the Bills of Entry & stated that it is settled law when the exemption prevails on the day of importation which should be allowed, there was no need to file any appeal as the refund claim was submitted within the stipulated time period under section 27 of Customs Act, 1962, he prayed that due to genuine error by the Currency Note Press, wholly owned Govt. of India, the duty was paid, which otherwise was not payable. The Govt. does not get unduly enrichment by the small amount of Rs. 1,13,33,651/- but being auditable point he requested for the earliest sanction. He also pleaded that in exactly identical case of Commissioner of C. Ex. Nhava Sheva V/s Crest Chemicals [2009(244) ELT 34 Tribunal Mumbai], the issue has been settled in favour of the Crest Chemicals that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been filed against rejection of refund and not against any order refusing amendment in the Bill of Entry. The above two are separate issues. The appellant had not filed any application before the Assistant Commissioner for amendment of Bill of Entry under Section 149 and got the same amended before seeking the refund vide their aforesaid letter dated 4.10.2010. What they had sought was refund of excess duty paid. Further, it is observed that question of reassessment of Bill of Entry under Section 149 came up before Hon'ble Madras High Court in the case of Commissioner of Customs, Tuticorin Vs. Thiru Arooran Sugars Ltd. - 2010 (254) ELT 45 (Mad.) and the Hon'ble High Court held that the Dy./Asstt. Commissioner was justified in rejecting the amendment of B/E under Section 149 when it involved re-quantification of duty. 7. The appellant has also argued that the exemption was not claimed at the time of assessment because the applicability of the exemption notification was doubtful. I find that the present issue is directly covered by the judgment of the Hon'ble Tribunal in the case of Commissioner of Customs (Imp.), Mumbai Vs. L.K. Steel Factory P. Ltd. - 2008 (225) ELT 113 (Tri.-M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, mis-application or wrong interpretation of a provision of law, rule, notification or regulation, as the case may be.) Is it open to the manufacturer to say that the decision of a High Court or the Supreme Court, as the ease may be, in the case of another person has made him aware of the mistake of law and, therefore, he is entitled to refund of the duty paid by him? Can he invoke Section 72 of the Contract Act in such a case and claim refund and whether in such a case, it can be held that reading Section 72 of the Contract Act along with Section 17(1)(c) of the Limitation Act, 1963, the period of limitation for making such a claim for refund, whether by way of a suit or by way of a writ petition, is three years from the date of discovery of such mistake of law? Kanhaiyalal is understood as saying that such a course is permissible. Later decisions commencing from Bhailal Bhai have held that the period of limitation in such cases is three years from the date of discovery of the mistake of law. With the greatest respect to the learned Judges who said so, we find ourselves unable to agree with the said proposition. Acceptance of the said proposition would do violence to several well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dance therewith. The second basic concept of law which is violated by permitting the above situation is the sanctity of the provisions of the Central Excises and Salt Act itself. The Act provides for levy, assessment, recovery, refund, appeals and all incidental/ancillary matters. Rule 11 and Section 11B, in particular, provide for refund of taxes which have been collected contrary to law, i.e., on account of a mis-interpretation or misconstruction of a provision of law, rule, notification or regulation. The Act provides for both the situations represented by Sections 11A and 11B. As held by a seven - Judge Bench in Kamala Mills, following the principles enunciated in Firm & Illuri Subbaiya Chetty, the words "any assessment made under this Act" are wide enough to cover all assessments made by the appropriate authorities under the Act whether the assessments are correct or not and that the words "an assessment made" cannot mean an assessment properly and correctly made. It was also pointed out in the said decision that the provisions of the Bombay Sales Tax Act clearly indicate that all questions pertaining to the liability of the dealer to pay assessment in respect of their transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inbefore. As a matter of fact, the situation today is chaotic because of the principles supposedly emerging from Kanhaiyalal and other decisions following it. Every decision of this Court and of the High Courts on a question of law in favour of the assessee is giving rise to a wave of refund claims all over the country in respect of matters which have become final and are closed long number of years ago. We are not shown that such a thing is happening anywhere else in the world. Article 265 surely could not have been meant to provide for this. We are, therefore, of the clear and considered opinion that the theory of mistake of law and the consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by an assessee taking advantage of the decision in another assessee's case. All claims for refund ought to be, and ought to have been, filed only under and in accordance with Rule 11/Section 11B and under no other provision and in no other forum. An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just because in another assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim for refund can be made by any person who had (a) paid duty in pursuance of an Order of Assessment or (b) a person who had borne the duty. It has been strenuously submitted that the words "in pursuance of an Order of Assessment" necessarily imply that a claim for refund can be made without challenging the Assessment in an Appeal. It is submitted that if the assessment is not correct, a party could file a claim for refund and the correctness of the Assessment Order can be examined whilst considering the claim for refund. It was submitted that the wording of Section 27, particularly, the provisions regarding filing of a claim for refund within the period of 1 year or 6 months also showed that a claim for refund could be made even though no Appeal had been filed against the Assessment Order. It was submitted that if a claim for refund could only be made after an Appeal was filed by the party, then the provisions regarding filing of a claim within 1 year or 6 months would become redundant as the Appeal proceedings would never be over within that period. It was submitted that in the claim for refund the party could take up the contention that the Order of Assessment was not correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') in the said appeal that the CESTAT has merely gone into the issue of classification and has not dealt with the issue which was really involved, viz., whether the respondent was entitled to refund or not. That appeal, in any case, against the order of rejection qua refund claim preferred by the assessee was not maintainable as held by this Court in Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) [2005 (10) SCC 433]." 4.8 In case of Maharastra Cylinders Pvt Ltd., supra Hon'ble Bombay High Court held as follows: "8. Where the goods are cleared under the self removal procedure basis on approved classification list and approved price list, the clearances are on self assessment and unless such self assessment is varied or altered, the question of refunding the duty paid on self assessment does not arise at all. The Apex Court in the case of M/s. Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) [AIR 2004 S.C. 5115] has held that validity of an assessment cannot be considered while dealing with the refund claim. The said ratio would apply to the self assessment as well." 4.9 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of duty paid as per the assessment order. 9. Strong reliance was placed by the counsel for the appellant on the decision of the Apex Court in the case of Karnataka Power Corporation Ltd. v. Commr. of Cus. (Appeals), Chennai reported in 2002 (143) E.L.T. 482 (S.C.) followed by the Tribunal in the case of TELCO Ltd. (supra). Both the aforesaid decisions have no relevance to the facts of the present case, because, in both the above cases, the Apex Court as well as Tribunal have remanded the matter back to the adjudicating authority to consider the application of the importer regarding the reclassification of the goods as well as the refund flowing therefrom. In the present case, the question raised is, where reasoned assessment order is not passed, whether the ratio laid down by the Apex Court in the case of the Priya Blue Industries Ltd. (supra) would be applicable. The Tribunal has rightly held in the affirmative. In both the aforesaid cases relied upon by the appellant, the importer had sought reclassification of the imported goods and the consequential refund. In that context, the matters were remanded for decision on merits regarding reclassification and consequential refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund was at large. In those circumstances, the point at issue was whether, when a new classification is suggested before the appellate authority, the consequent relief flowing out could be held to be time barred. In that case, it is clear from the order that the appellant had sought for amendment before the Assistant Commissioner of Customs and in that view of the matter, refund was claimed. Therefore, the issue was at large before the competent authority. The facts, as narrated above, would reveal that the decision in Karnataka Power Corporation case (supra) relied on by the Tribunal is distinguishable on facts, as the issue on classification as well as refund was at large before the appellate authority. However, in the case on hand, such is not the case, as the order of assessment has not been challenged and the assessment has reached finality. 14. The distinction, as detailed above, which is evident from the facts of the present case, has not been appreciated in its proper perspective by the Tribunal while arriving at the decision. 15. The decision of the Delhi High Court, brought to the notice of this Court at the time of hearing in Aman Medical Products case (supra) is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit available to it and sought refund of the duty, i.e., of Rs. 6,76,165/- which was initially rejected by the Deputy Commissioner on the ground that the bills of entry had not been challenged. The assessee's appeal was, however, allowed by the Appellate Commissioner in view of this Court's judgment in Aman Medical Products Ltd. v. CC, Delhi, 2010 (250) E.L.T. 30 (Del.) which considered the Supreme Court's decision in Priya Blue Industries Ltd. v. Commissioner of Customs, 2004 (172) E.L.T. 145 (S.C.). The Court held that where the duty had been paid by the assessee without an order of assessment and there was no lis pending between the parties then in such a situation, the refund claim of the assessee could not be rejected merely on the ground of non-filing of appeal against the bills of entry, which had subsequent attained finality." The said decision of Delhi High Court is based on its earlier decision in case of Aman Medicals, which has been distinguished by Hon'ble Madras High Court as referred in para 4.10 above. Since the facts in present case are akin to the case under consideration of Madras High Court, we hold that this case too is distinguishable. Even otherwise in ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
