2009 (6) TMI 753 - AT - Customs

Appeal for Refund Claim Rejected Despite Countervailing Duty Payment

The appeal was filed against the rejection of a refund claim by the assessees, based on the final assessment without challenging the countervailing duty ... Refund of countervailing duty - Maintainability of Issues:1. Rejection of refund claim based on final assessment.2. Appellant's argument regarding the necessity of a speaking order under Section 17(5) of the Customs Act, 1962.3. Failure to pass a speaking order by the assessing authority.4. Applicability of the Supreme Court's ruling in Priya Blue Industries to the present case.5. Remand of the case for a fresh decision on the refund claim.Analysis:1. The appeal was filed against the rejection of a refund claim by the assessees, which was deemed not maintainable as the assessment on which countervailing duty was paid was not challenged. The lower authorities relied on the Supreme Court's judgment in CCE v. Priya Blue Industries, stating that a refund claim is not maintainable if the assessment order is not challenged or modified. The Tribunal's Larger Bench decision in the case of M/s. Eurotex Industries & Exports Ltd. was also cited. The claim for refund was rejected based on the finality of the assessment without any application for reassessment.2. The appellant sought to distinguish the case of Priya Blue Industries by arguing that the assessing authority should have passed a speaking order under Section 17(5) of the Customs Act, 1962. It was contended that a speaking order should have been issued considering the assessee's claim for exemption from countervailing duty. Reference was made to a judgment by the Hon'ble High Court in Karan Associates v. Commissioner of Customs, emphasizing the requirement for a speaking order even before the insertion of subsection (5) under Section 17.3. Upon examination, it was found that the appellant had indicated nil BCD and CVD in the provisional loading column, implying a claim for exemption from CVD on re-imported goods. Despite this, CVD was assessed and paid under protest by the assessee without a speaking order being issued by the assessing authority within the stipulated timeframe. The failure to provide a speaking order as required under Section 17(5) was noted, and it was argued that the ruling in Priya Blue Industries might not be applicable due to this oversight.4. The plea regarding the non-applicability of the Priya Blue Industries ruling was not raised before the lower authorities, leading to the rejection of the refund claim based on the precedent set by that case. Consequently, the judgment called for a remand of the case to the original authority for a fresh decision on the refund claim. The orders of the lower authorities were set aside, and the appeal was allowed by way of remand, directing the original authority to pass a speaking order after affording the claimant a reasonable opportunity to be heard.