2009 (7) TMI 347 - AT - Customs

CESTAT allows Revenue's appeal against refund orders, remands for fresh consideration

In the case before CESTAT, New Delhi, involving M/s. Star Ply Lam Ltd., the tribunal allowed the Revenue's appeal against the refund orders, finding the ... When importer noticed that rate of CVD were reduced to 8% from 16% vide Notification No. 23/2007-C.E , he filed applications for amendment/re-assessmenl of bills of entry. They have also filed refund claims - Appraiser re-assessed the bills of entry and approved by the Asst. Commissioner, refund claims were sanctioned on the basis of re-assessment of bills of entry – Refund were sanctioned on re-assessment of bills of entry while appeal pending before Commissioner (A) - Unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal that order stands – appellant failed to show any provision for re-assessment of bills of entry. - In any event, there is a provision for amendment of bills of entry under Section 149 of the Customs Act - re-assessment of bills of entry by the Appraiser and approval by the Asst. Commissioner is contrary to law, cannot be accepted. However, the appellants also requested for amendment of the bills of entry which was not considered by the original authority. - Matter is remanded back to the original authority to decide afresh after considering the amendment of bills of entry - Regarding appeal filed by the importer, I find that the importer withdrew the appeals as they got refund. Appeals were dismissed as infructuous. Submission of the learned Advocate is that order passed by the Commissioner (Appeals) would be set aside on the basis of subsequent development in the matter I find that appeals were dismissed as infructuous and, therefore, importer may apply before the Commissioner (Appeals) to consider the matter on the basis of subsequent development and the Commissioner (Appeals) shall decide the matter in accordance with law. In the appellate tribunal CESTAT, New Delhi, the common issue involved in the appeals concerned the re-assessment and refund claims of M/s. Star Ply Lam Ltd. The importer filed two bills of entry, which were initially assessed to CVD @ 16%. After a reduction in CVD rate to 8%, the importer sought amendment and re-assessment of the bills of entry. The Appraiser and Asst. Commissioner approved the refund claims based on the re-assessment. However, the Commissioner (Appeals) dismissed the importer's appeals as infructuous since the refund claims had been received. Subsequently, the Revenue filed an appeal against the refund orders, leading the importer to file further appeals.The Revenue argued that the Appraiser's re-assessment was impermissible, citing a Supreme Court decision. The importer's advocate contended that re-assessment could be allowed post-clearance, referencing Tribunal decisions. The tribunal found that the re-assessment by the Appraiser and Asst. Commissioner was contrary to law, but noted that the original authority failed to consider the amendment of the bills of entry. Relying on a Tribunal case, the tribunal set aside the impugned orders, allowing the Revenue's appeal and remanding the matter for fresh consideration.Regarding the importer's appeal, the tribunal noted that the importer withdrew the appeals upon receiving refunds, and the Commissioner (Appeals) dismissed them as infructuous. The tribunal suggested that the importer could request the Commissioner (Appeals) to reconsider the matter based on subsequent developments. Ultimately, all appeals were disposed of accordingly.