2017 (6) TMI 260 - AT - Customs

Appeal granted for refund claim, remanded for reconsideration.

The Tribunal allowed the appeal and remanded the matter for reconsideration of the refund claim, holding that the refund should not be denied solely based ... Refund claim of excess duty paid - The assessment was done on standard rate of duty whereas as per the said notification concessional rate of basic duty at the rate of 10% was available to the imported goods - benefit of N/N. 21/02 - denial of refund on the ground that a refund claim is not maintainable when the assessee did not challenge the assessment order, which became final - Held that: - there is no lis between the department and the appellants as regards the eligibility of the concessional duty in terms of exemption N/N. 21/02. Even when the appellants have filed the refund claim the Asstt. Commissioner could have very well decided the eligibility of N/N. 21/02 instead of returning the refund claim - reliance was placed in the case of COLLECTOR OF CENTRAL EXCISE, KANPUR Versus FLOCK (INDIA) PVT. LTD. [2000 (8) TMI 88 - SUPREME COURT OF INDIA], where it was held that the refund in respect of the duty paid on their own by the assessee can be claimed u/s 27 particularly when there is no lis between the assessee and the department. The refund is not liable to be denied on the basis that the assessment of bill of entry was not challenged - matter remanded for reconsideration for the claim of refund - appeal allowed by way of remand. Issues:Claim for refund of excess duty paid under notification 21/2002 (Sr. No. 477) for clearance of high density polyethylene. Denial of refund claim by Asst. Commissioner based on non-challenge of assessment order. Interpretation of legal principles regarding refund claims without challenging assessment orders.Analysis:1. The appellants filed bills of entry claiming benefit under notification 21/2002 for concessional rate of duty. The assessment was done at standard rate, leading to an excess duty payment of Rs. 43,40,276. The Asst. Commissioner denied the refund claim citing non-challenge of assessment order, referring to Supreme Court judgments in CCE vs. Flock (India) Pvt. Ltd. and Priya Blue Inds. case.2. The appellant's consultant argued that the appellants were entitled to the exemption under notification 21/2002 without any dispute. He highlighted that subsequent legal developments allowed for refund claims even without challenging the assessment order, citing judgments like Mecon Ltd., Hindustan Petroleum Corpn. Ltd., and Goa Shipyard Ltd.3. The revenue's representative supported the Asst. Commissioner's decision, emphasizing the settled legal position based on Supreme Court judgments. However, the Tribunal noted that there was no dispute regarding the eligibility of the exemption notification between the appellants and the department, indicating no adversarial assessment order.4. The Tribunal observed that the refund claim itself could challenge the assessment, as seen in various legal precedents. Referring to cases like Aman Medical Products Ltd., it was established that non-filing of an appeal against an assessed bill of entry does not deprive the importer of the right to file a refund claim under Section 27 of the Customs Act.5. Considering the legal position and precedents, the Tribunal allowed the appeal by remanding the matter to the original authority for reconsideration of the refund claim. It was held that the refund should not be denied solely based on the non-challenge of the assessment order, especially when there was no dispute regarding the eligibility of the concessional duty under the exemption notification.This detailed analysis of the judgment highlights the key legal issues involved, the arguments presented by both parties, and the Tribunal's decision based on relevant legal principles and precedents.