2015 (12) TMI 727 - AT - Customs

Excise Duty Refund Appeal Dismissed for Lack of Evidence and Challenge to Assessment Order

Balaji Plywood Versus Commissioner of Customs, Mumbai-I

The Deputy Commissioner rejected the appellant's refund application for excise duty, citing lack of objection to an enhanced declared value and failure to ... Valuation of goods - Enhancement in value of goods - Assessee paid enhanced value since he wanted goods urgently - Thereafter he filed refund claim since no assessment order was passed - Held that:- decision of the Apex Court in the case of Priya Blue Industries (2004 (9) TMI 105 - SUPREME COURT OF INDIA) as well as Flock (India) Pvt. Ltd. (2000 (8) TMI 88 - SUPREME COURT OF INDIA) settles the issue beyond doubt. The Hon'ble Supreme Court has held that once the order of assessment is passed and unless that order is reviewed under Section 128 or modified in appeal that order stands and officer considering the refund claim cannot stand in appeal over the assessment made by the competent officers - Since in this case the appellant has not challenged the assessment order, consequently refund claim is not maintainable - Decided against Assssee. Issues:1. Refusal of refund application by Dy. Commissioner.2. Upholding of refusal by Commissioner.3. Consideration of evidence by Commissioner.4. Maintainability of refund application without challenging assessment order.5. Applicability of the principle of unjust enrichment.Refusal of Refund Application by Dy. Commissioner:The appellant imported goods and declared a value based on the purchase order, invoice, and letter of credit. The assessing officer insisted on enhancing the declared value, which the appellant accepted to expedite clearance. Subsequently, the appellant applied for a refund of excise duty paid, supported by a Chartered Accountant certificate stating that the duty paid was not included in the sale price. However, the Dy. Commissioner rejected the refund application, citing the appellant's lack of objection to the increase and failure to provide evidence that the excess duty was not passed on to others.Upholding of Refusal by Commissioner:The Commissioner upheld the Dy. Commissioner's decision, emphasizing that a Chartered Accountant certificate alone is insufficient to rebut the presumption of passing on the duty burden. The Commissioner noted that sales invoices are crucial evidence in such cases, which the appellant failed to produce during the initial appeal. The appellant later submitted the sales invoice along with the appeal to demonstrate that the duty burden was not included in the sale price.Consideration of Evidence by Commissioner:The appellant argued that the Commissioner did not consider the evidence provided, specifically the sales invoice submitted during the appeal. The appellant contended that the Chartered Accountant certificate and sales invoice collectively proved that the duty incidence was not reflected in the sale price. However, the Commissioner's decision seemed to overlook this evidence, leading to the appellant's dissatisfaction with the outcome.Maintainability of Refund Application Without Challenging Assessment Order:The issue of challenging the assessment order surfaced, with the appellant's refund application being deemed not maintainable without contesting the assessment order. Legal precedents, including judgments from the Apex Court, were cited to support the argument that a refund claim cannot stand without challenging or modifying the assessment order through appropriate legal channels.Applicability of the Principle of Unjust Enrichment:The concept of unjust enrichment was discussed in light of the Supreme Court's rulings, emphasizing that a refund claim is not viable unless the assessment order is reviewed or altered through the proper appeal process. Since the appellant did not challenge the assessment order, the refund claim was deemed unsustainable, leading to the dismissal of the appeal based on the legal principles outlined in the cited judgments.