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TMI Blog2022 (2) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... on merit. 2. The brief facts of the case are that Appellant are engaged in manufacture of tyres falling under Chapter 40 of the CETA, 1985. During the period 01.04.2014 to 06.10.20214 they had imported 121 consignments of Natural Rubber at Mundra Port under Advance Licence and claimed exemption under Notification No. 96/2009-Cus dated. 11.09.2009. The Bill of Entry were thus assessed to "Zero" However they were not permitted to clear the goods without depositing the "rubber cess" in cash. The same was paid by the Appellant "Under Protest". The Appellant subsequently on the basis of order of Commissioner (Appeals) dated 20.05.2014 in their own case that cess is not payable, filed refund application for imports involving instant period under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had paid Rubber Cess on the assessment of bills of entry is factually incorrect and contrary to records. The records clearly show that rubber cess was not paid on assessment of Bills of entry. The assessment of the duty on the bills of entry was nil. No rubber cess was assessed by the proper officer in any of the bills of entry. In view of the nil assessment of the duty on the bills of entry, the question of challenging the assessment order either by filing appeal or otherwise does not arise and the ratio of Judgment of Hon'ble Apex Court relied upon by the Learned Commissioner (Appeals) is inapplicable. In the case of SEAS GOA LTD. -2015 (322) ELT 65(BOM), the Hon'ble Bombay High Court in identical factual situation held that ration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the facts of the case, the bills of entry assessed at nil rate of duty. Subsequent to the final assessment of Bills of entry,the revenue has insisted for payment of Rubber Cess in cash on the imported rubber, consequently, the appellant have deposited the Rubber Cess through various challans. We find that since the Bills of entry were assessed at nil rate of duty, there is no issue arises out of the Bills of entry which can be challenged by the appellant. The bills of entry assessed can be challenged only in those cases where the duty was on a higher side and excess duty was not payable in order to claim the refund of such excess paid duty. The assessee is first required to challenge the bills of entry and consequential to outcome of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not arise. The judgment of the Apex Court relied upon by the authorities which levied duties, would not be applicable to the present case. In the cases before the Apex Court, there was an assessment order levying duty which was not challenged. This is not the situation in the present case. In the present case, the assessment order was a nil assessment and no duties were levied and as such, the appellant cannot be said to be aggrieved by such order. In such circumstances, we find that the reliance by the Commissioner (Appeals) and CESTATE on the judgment of the Apex Court in the case of Priya Blue Industries Ltd. (supra) is not justified in the present case. 10. Shri Ramani, learned Counsel in support of his contentions also brought to ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , admittedly, the appellant cannot be said to be aggrieved with the correctness of the order of nil assessment. The order sanctioning refund passed by the Assistant Commissioner dated 14-12-2007 is accordingly justified. Consequently, the orders passed by the Commissioner (Appeals) dated 26-5 2008 and the order passed by the CESTAT dated 17-6-2009 cannot be sustained and deserve to be quashed and set aside. The substantial question of law is answered accordingly." From the above judgment also, it can be seen that when the assessment is at nil rate of duty any amount paid separately, for the purpose of the refund of the same the assessment of bills of entry need not be challenged. Being on identical facts and issue, the ratio of the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown the amount of refund as receivable in their Books of Accounts and the same was reinforced by Chartered Accountant certificate. Therefore, the appellant have established that the incidence of rubber cess paid by them, and for which the refund was sought for, has not been passed on to any other person, accordingly, the refund is not hit by unjust enrichment. 5.2 As per our above discussion and findings, we are of the clear view that the appellant are entitled for the refund of Rubber cess paid by them. 5.3 The Appeal No. C/11238/2016 -DB is against the Order in Original whereby the recovery of refund has been ordered which is consequential to denial of refund by the Learned Commissioner (Appeals). Since the refund is admissible as di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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