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of <h1>EOU refund claim dismissed for failing to challenge assessment order through proper appellate proceedings under Section 27</h1> <h3>M/s Gangeshwar Spinning Mills (Prop. TT Ltd.) Versus Commissioner of Customs & Central Excise, Meerut</h3> M/s Gangeshwar Spinning Mills (Prop. TT Ltd.) Versus Commissioner of Customs & Central Excise, Meerut - TMI Issues Involved:1. Jurisdiction of the Central Excise officer to demand differential duty.2. Validity of the demand for differential duty and interest.3. Appealability of the letter dated 30.07.2009.4. Legitimacy of the rejection of the refund claim.Summary:1. Jurisdiction of the Central Excise officer to demand differential duty:The appellant contended that the letter dated 30.07.2009 demanding differential duty was issued without jurisdiction. They relied on the precedent set in *Metal Forgings v. Union of India 2002 (146) ELT 241* and argued that the Assistant Commissioner lacked the power to review the No Objection Certificate (NOC) dated 26.12.2007 and demand differential duty. The Tribunal, however, did not find merit in this argument.2. Validity of the demand for differential duty and interest:The appellant argued that the differential duty along with interest was not payable, citing *State of U.P. v. Singhara Singh (1964) 4 SCR 485* and *L. Hriday Narain v. ITO (1970) 78 ITR 26*. The Tribunal noted that the appellant paid the differential duty and interest under protest and subsequently filed for a refund. The Tribunal upheld the lower authorities' findings that the duty was not self-assessed by the appellant and that the demand was based on an audit observation. The Tribunal referenced *CCE, KNP v. Flock India 2000 (120) ELT 285 (SC)*, stating that non-challenge of an appealable order results in its finality.3. Appealability of the letter dated 30.07.2009:The appellant claimed that the letter dated 30.07.2009 was not an appealable order. The Tribunal disagreed, referencing *Gujarat Ambuja Cement Ltd.*, *Bhagwati Gases Ltd.*, *Hindustan Rubber & General Indus.*, and *Oswal Castings Pvt. Ltd.*, which established that communications affecting rights are appealable. The Tribunal emphasized that the appellant did not challenge the assessment made in the letter dated 30.07.2009, and thus, the order attained finality.4. Legitimacy of the rejection of the refund claim:The Tribunal upheld the rejection of the refund claim, referencing the decision in *Supernova Exim Pvt. Ltd. 2018 (8) GSTL 318 (Tri.-Ahmd.)*. It was noted that the EPCG scheme covers only the import of capital goods and not domestically procured capital goods. The Tribunal concluded that the appellant was required to pay duty foregone under Notification No. 22/2003-C.E. and that the concessional duty rate of 5% did not apply to indigenous capital goods supplied under the EPCG scheme. The Tribunal also referenced the Supreme Court's decision in *ITC Ltd. [2019 (368) ELT 216 (SC)]*, which stated that refund provisions are executionary and cannot modify assessment orders.Conclusion:The appeal was dismissed, with the Tribunal affirming that the appellant's failure to challenge the assessment order dated 30.07.2009 precluded them from claiming a refund. The Tribunal found no merit in the appellant's arguments and upheld the lower authorities' decisions.
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