TMI Blog2023 (3) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms. In view of the clear mandate of the notification to exempt additional duty of customs, the goods imported are eligible to the exemption from additional duty of customs thereon. Non-challenge to the order of assessment against the bills of entry - HELD THAT:- The Tribunal has held in the case of M/S. FRESENIUS MEDICAL CARE INDIA PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS - IV CHENNAI [ 2018 (7) TMI 103 - CESTAT CHENNAI] has held that the Court noticed that it was always not necessary to have an order of assessment for a person to claim refund of duty. 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. However, it is noted that the Hon ble Apex Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [ 2019 (9) TMI 802 - SUPREME COURT] has held that the assessment order including self-assessment needs to be challenged to become eligible for refund. In this case, the appellants when applied for refund, the refund sanctioning authority has communicated vide their letter F. No. S25A/ Gen/27/2010-Ref (Air) dated 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies Vs. Commissioner of Customs 2004 (172) ELT 145 (S.C). While communicating rejection of refund claims in a letter F. No. S25A/ Gen/27/2010-Ref (Air) dated 16.09.2011, the refund sanctioning authority has stated that the appellants were eligible for exemption of both excise duty portion and 4% SAD portion but as the reassessment was not done by the assessing group, the same could not be reviewed or modified. 2.2 On appeal, the Lower appellate authority has concluded that the Notification No. 51/1996 would not cover the exemption of SAD as at that relevant time as Section 3 of the CTA talks about levy of additional duty equal to excise duty, that with effect from 13.05.2005, Section 3A ibid was omitted and that prior to that SAD is equivalent to sales tax, local tax or other taxes for the time being leviable on like articles on its sale or purchase in India, was covered under Section 3A of CTA,1975. Since the notification under dispute No. 51/1996 was issued on 23.07.1996 and amended subsequently till 01.03.2007, did not carry any amendment with regard to SAD. The original notification when issued meant only additional duty of customs equivalent to excise duty chargeable on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Therefore, by claiming to retain the tax which has been collected without the authority of law, the Govt. cannot enrich itself and it is liable to make restitution to the person who made payment under mistake or coercion. The state has violated Art. 265 and therefore has a binding duty to refund the duty illegally collected. c. In the case of Commissioner of Sales Tax U.P Vs. Auriaya Chamber of Commerce in Allahabad reported in 1986 (25) ELT 867 (S.C), where in it was held that duty paid under mistake of law needs to be refunded. Rules of procedure are handmaids of justice and it s Mistress. State has no authority to retain tax collected without authority of law. d. In the case of Commissioner of Customs, New Delhi Vs. Prima Telecom reported in 2011 (266) ELT 386 (Tri.-Del.), it has been held that there is no need to challenge the assessment when there is no lis between the department and the importer. The Tribunal ordered refund of the duty. e. In the case of Hero Cycles Ltd. Vs. UOI reported in 209 (240) ELT 490 (Bom.), the Hon ble Bombay High Court held that any duty paid under mistake of law or by oversight cannot result in being assessed to duty not payable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 3 of CTA and as such very much within the scope of exemption. 5.3 We find that the issue is covered in the assessee s own case vide Tribunal s Final Order Nos. 41025-41036/2014 dated 23.12.2013, which read as under:- Exemption of additional customs duty Notification No. 51/96 dated 23.07.1996 - held that there is no description of different types of additional duty of customs in the notification. The notification categorically states that exemption from whole of the additional duty of customs leviable on the goods under Section 3 of the Customs Tariff Act, 1975 is allowed. In absence of any description and nomenclature of additional duty in the notification there cannot be any interpretation otherwise possible to deprive the appellant from exemption of additional duty of Customs. In view of the clear mandate of the notification to exempt additional duty of customs, the goods imported are eligible to the exemption from additional duty of customs thereon. Decided in favour of assessee. (National Institute of Ocean Technology Vs. Commissioner of Customs (AIR) -2016 (343) ELT 532 (Tri.-Chen.) 5.4 On the issue of not having challenged the order of assessment agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 filing a Bill of Entry. In fact, such a case is the present case in which there is no assessment order for being challenged in the appeal which is passed under Section 27(1)(i) of the Act because there is no contest or lis and hence no adversarial assessment order. 10. The Court in Aman Medical Products Limited (supra) also took note of and held that the decisions in Collector of Central Excise v. Flock (India) (P.) Ltd. (supra) and Priya Blue Industries Ltd. v. Commissioner of Customs (Prevention) (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. 6. However, we note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27 . The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re-assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, reassessment is not permitted nor conditions of exemption can be adjudicated. Reassessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or reassessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. [1998 (97) E.L.T. 211 (S.C.); 2009 (240) E.L.T. 490 (Bom.); 2004 (172) E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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