TMI Blog2024 (3) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the appellant without any challenge to the two letters determining the duty payable in terms of Section 125 (2) is maintainable, till the time assessment made in the said letters is set aside by the appropriate appellate authority. Appeal is dismissed. - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri A.P. Mathur, Advocate Shri M.P. Sarraf, Advocate for the Appellant Shri Santosh Kumar, Authorised Representative for the Respondent ORDER This appeal is directed against Order-In-Appeal No. 488-CUS/APPL/LKO/ 2018 dated 17.09.2018 of Commissioner (Appeal) Customs and Central Excise Lucknow. By the impugned order appeal filed by the appellant against Order-In-Original rejecting the refund claim filed by the appellant has been dismissed. 2.1 Appellant filed the refund application on 19.10.2012 for refund of Rs. 15,78,001/- under Section 27(1) (a) of the Customs Act, 1962 for refund of customs duty/interest which has been paid in excess by them in pursuance to the Hon'ble CESTAT's Final Order No. C/498- 503/2011-CU(DB) dated 22.11.2011. 2.2 Vide Order-in-Original No. 13/Cus/Commr/Adj/2005 dated 23.12.2005, absolute confiscation of the seized 36 Gold Biscuits weighing 4.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2 Arguing for the appellant learned counsel submits: The value of the confiscated gold, was ascertained at Rs 21,83,500.80 (seizure value) and the redemption fine was determined as 10% of the said value by the CESTAT. Revenue should have determined the duty payable in terms of Section 125 (2) on the basis of the value determined in the CESTAT order, and not as per the current value at the time of the redemption of goods, as has been held in the following decisions M S Shoes East Ltd. [2007 (210) ELT 641 (SC)] Bharat Surfactants Pvt Ltd. [1989 (43) ELT 189 (SC)] Appellant had paid the duty, as determined by the authorities along with the redemption fine imposed and have redeemed the said gold biscuits. Appellant subsequently have filed this refund application as the duty paid by them was much in excess of what was legally payable. Authorities below have rejected the refund application contrary to the provisions of law and the appellant have suffered loss, mental pain and agony for the long delay in release of the gold to him since seizure in 2002. The duty demanded is inequitable. 3.3 Arguing for the revenue learned authorized representative while re-iterating the findings recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 125(2) of the Customs Act,1962. Thus, it is clear that the appellant is required to pay the duty terms of Section 125(2) of the Customs Act, 1962. 10. The relevant text of the Section 125(2) of the Customs Act is reproduced below: Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods. From the above, it is clear that owner of such goods to whom any fine in lieu of confiscation under Section 125(1) is imposed shall, in addition, be liable to any duty and charges payable in respect of such goods. In the instant case, the 36 Gold biscuits were not Imported by proper import licence, therefore the duty exemption vide Notfn. No. 02/2012-Cus wil not be available to them and Customs duty on 36 gold biscuits weighing 4199.04 gms is to be determined at the rate available at present in view of Section 15(1)c of Customs Act, 1962 The plea taken by the party that the provisions of sec 15(1)c is not applicable to baggage and 6oods imported by post as the goods in question were not imported by proper import lice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per this letter. 4.5 Subsequently vide letter dated 18.05.2012, following was communicated to the appellant: Subject: Deposit of dues on 36 gold Biscuits of foreign origin. Please refer to this office letter even C No 6231-32 dt 09.05.12 in which the duty amount was communicated. In the said letter SAD duty has been wrongly calculated communicated as Rs. 50741/- where as correct SAD to be paid is Rs 543372/- It is therefore requested to deposit the differential amount of Rs 4,92,631/- and submit copy of Tr-6 for further action at this end. Yours sincerely -Sd DEPUTY COMMISSIONER (CUSTOMS) CENTRAL EXCISE::KANPUR Appellant vide TR-6 Challan No 04 dated 14.06.2012 deposited the additional duty as communicated by the Deputy Commissioner. From the perusal of the TR-6 challan it is evident that appellant had deposited the this amount, without any protest or questioning the determination of duty as per this letter. 4.6 From the letter as above it is evident that the these letters are in nature of assessment order determining the duty payable on the gold sought to redeemed as per the order dated 22.11.2011 of CESTAT. Appellant had not challenged the determination of the duty as per these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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-accepted concepts of law. One of the important principles of law, based upon public policy, is the sanctity attaching to the finality of any proceeding, be it a suit or any other proceeding. Where a duty has been collected under a particular order which has become final, the refund of that duty cannot be claimed unless the order (whether it is an order of assessment, adjudication or any other order under which the duty is paid) is set aside according to law. So long as that order stands, the duty cannot be recovered back nor can any claim for its refund be entertained .. 99. The discussion in the judgment yields the following propositions. We may forewarn that these p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal. This Court held that it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing the order. The provisions of the Central Excise Act, 1944 came up for consideration. The Court has observed : 10. Coming to the question that is raised, there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing its order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position, in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths. It was still held, in Flock (India) s case (supra), that in the absence of an appeal having been filed no refund claim could be made. 8. The words in pursuance of an order of assessment only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an order of assessment to claim the refund. These words do not lead to the conclusion that without the order of assessment having been modified in appeal or reviewed a claim for refund can be maintained. (emphasis supplied) 41. It is apparent from provisions of refund that it is more or less in the nature of execution proceedings. It is not open to the authority which processes the refund to make a fresh assessment on merits and to correct assessment on the basis of mistake or otherwise. 42. It was contended that no appeal lies against the order of self-assessment. The provisions of Section 128 deal with appeals to the Commissioner (Appeals). Any person aggrieved by any decision or order may appeal to the Commissioner (Appeals) within 60 days. There is a provision for condonation of delay for another 30 days. The provisions of Section 128 are extracted hereunde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of amendment or modification having been made in the bill of entry on the basis of which self-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, re-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment 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 re-assessment 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 provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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