TaxTMI 
TaxTMI 
2007 (10) TMI 468
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....1-6-2004; 8. F-37 dt. 17-9-2003 & 9. F-54 dt. 9-12-2003. 3. The Appellant had a bonded re-warehouse under Section 58 of the Customs Act, 1962 for the storage of imported Crude Petroleum without payment of duty on importation or re-warehousing during the relevant period and was engaged in storage of imported Crude Petroleum transported through pipelines under bonded movement from Vadinar (Gujarat) in their bonded tanks at Panipat refinery. 4. However, the facility of removal of petroleum and petroleum products without payment of Customs duty from one warehouse to another was withdrawn vide Notification No. 17/2004-C.E. (N.T.), dated 4-9-2004 read with Circular No. 8/2005-Cus., dated 14-2-2005 and Circular No. 9/2005-Cus., dated 15-2-2005 with effect from 15-2-2005. Owing to which the transfer of petroleum and petroleum products without payment of Customs duty from the warehouse at the port of import to inland warehouses and then pay the duty at destination was discontinued w.e.f. 15-2-2005 and the petroleum products lying in warehouses at places in the hinterland other than the ports were de-bonded from the Customs warehouses with realization of duty determined under....
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....g to Bills of Entry No. 1. F-51 dt. 18-8-2000; 2. F-22 dt. 7-6-2001; 3. F-60 dt. 26-9-2001; 4. F-74 dt. 8-11-2001 as time-barred under Section 27(1)(b) of the Customs Act, 1962. The Adjudicating Authority also rejected the refund claim pertaining to remaining Bills of Entry No. 5. F-04 dt. 19-4-2004; 6. F-16 dt. 10-6-2004; 7. F-15. dt. 1-6-2004; 8. F-37 dt. 17-9-2003 & 9. F-54 dt. 9-2-2003 under Section 27 of the Customs Act, 1962. 8. Aggrieved with impugned order the Appellant filed the present appeal on the following grounds : (1) At the outset, the Appellant denies all the inconsistent sets of objections for rejecting the refund applications, which are not sustainable on the grounds, which are independent and are not prejudiced to each other. (2) That the contentions made for rejecting the refund applications by the Adjudicating Authority are denied and not admitted because the same are against the legislative law and the order is also illegal and against the facts and law, hence not sustainable. (3) In the said adjudication order, it is has been observed by the Adjudicatin....
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....nt. In support of appeal, the appellant wants to place here some prominent judgments mentioned below :- * G.K.N. Invel Transmissions Ltd. v. Commissioner of Cus., N Delhi-2001 (137) E.L.T. 527 (Tri. Del.) * Collector of Central Excise, Madras v. Indian Oil Corporation Ltd.-2002 (141) E.L.T. 334 (H.C.-Mad.) * TISCO Ltd. v. Commissioner of Central Excise, Jamshedpur - 1999 (114) E.L.T. 461 (Tribunal) * Alcatel Modi Networks Systems v. Commissioner of Cus., New Delhi-2000 (117) E.L.T. 522 (Tribunal) * Mafatlal Industries Ltd. v. Union of India-1997 (89) E.L.T. 247 (S.C.) * Commandant Embarkation Headquarters v. Collr. of Cus., Bombay - 2000 (122) E.L.T. 532 (Tribunal) 10. From the above submission, it is clear that the refund claim has rightly been filed by the appellant, after the finalization of provisional assessment and the same is not disputed in any manner. The case referred by Adjudicating Authority is not applicable to the instant ma....
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....ara 3] CC, Nhava Sheva v. Eurotex Industries & Exports Ltd. - 2007 (80) R.L.T. 473 (CESTAT-Mum.) 11. In the light of above submission, it is clear that ratio of Flock India will be applicable where an appealable order has been passed but in the instant case, there is no appealable order, it is mere finalization of provisional assessment of duty. Hence, the relief can only be claimed by filing refund claim and not by an appeal because there is no appealable order. 12. The appellant want to mention here that while rejecting the refund applications, the Adjudicating Authority has surpassed the provisions of law while giving the reasons of rejecting the refund applications filed by the appellants. It is an established provision that before rejecting the refund applications, a show cause notice should have been served to the appellant giving the grounds for rejection of refund applications filed by the appellants. But in the instant case neither such show cause notice was issued nor proper time for filing the grounds of admissibility of refund application was given to the appellant, which is against the legal statute as well as against the Principle of Natural Justice....
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.... state here that such refund claims has not only been sanctioned from the office of the Commissioner of Customs, (Refund), NCH, New Delhi but also by various adjudicating authorities throughout the country and hence, the same is not disputed at all. 17. The appellant want to place here Order-in-Original No. 13-50/Refund/2007, dated 6-2-2007, passed from the office of the Asstt. Commissioner of Central Excise Division, Aligarh (U.P.) in favour of M/s. IOCL. 18. The appellant want to express here that time limit under Section 27 of the Customs Act, 1962 starts from date on which final assessment order of Bill of entries were received by the appellant (IOCL, Vadinar in the case of appellant) and not the date of assessment signed by the concerned Customs authorities on Bill of entries. 19. As per Section 27(1)(b) of Customs Act, 1962, the refund claim was required to filed before the expiry of six months from the dated acknowledgment of receipt of final order because in this case, there has been provisional assessment u/s. 18(1) of the Customs Act, therefore, the limitation of six months shall be computed from the date of receipt of final assessment order, as st....
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....on of provisional assessment and getting the refund claims of excess duty paid at the time of finalization of provisional assessment in respect of importation of crude petroleum, as elaborated above. And not only the appellant, but also all the assessees throughout the country, are following the same procedures and getting the refund claim of excess Customs duty paid, then where the question arises of challenging the assessment of bill of entries. This action of the Adjudicating Authority clearly indicates that they are not consciously willing to sanction the refund claim and crushing the law under their deliberation as well as harassing the assessees, which is against the laws and against the principle of natural justice. Therefore, the order so passed is liable to set aside on this ground too. Had there been no sanctioning of refund claim, there would have been no filing of refund claim and the only option left with the appellant would be to challenge the assessment of bills of entry. 25. The appellant want to explain here that so many years have been passed but the refund claims have not been sanctioned to us till now. Therefore, considering the above-mentioned grounds, ....
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.... certificate from the Chartered Accountant was also submitted. It is also submitted that the price of the finished goods manufactured by appellant is determined by the Government and is not dependent on the Customs duty paid on the crude oil. Hence, the doctrine of unjust enrichment does not apply in the instant matter. 29. The Appellant were given an opportunity to be heard in person on 21-9-2007 when Shri Dinesh Verma, Advocate, appeared on behalf of the Appellant. He submitted written submissions and requested that their case was different from that of Flock India case because her no classification issue was involved and no rate of duty question is involved. It is a simple case of refund, which arose because of finalization of their provisional assessment in terms of Section 18 of Customs Act. It was also submitted that their refund claim was not time-barred looking the date of communication of finalization of assessment order dated 17-3-2006 and the date of filing the refund claim being 26-5-2006 in this case. Similar is the position in r/o other three cases. This submission be considered for other three cases also involving the identical issue. 30. Discussion a....
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....e, Vadinar vide his Letter F.No.VIII/48-04/IOC/2003-Part-II dated 17-3-2006 communicated the decision of finalization of these five Bills of Entry to the Appellant and the Appellant filed the refund claim on 26-5-2006. According to law the Adjudicating Authority should have calculated the limitation period from the date of communication of finalization of the provisional assessment. It is from the date of communication of finalization of provisional assessments that the assessee comes to know that he is entitled for a refund. Therefore interpretation of Adjudicating Authority from the date of finalization is not correct and is against the well-settled law. Moreover, the Hon'ble CESTAT in the case of Alcatel Modi Networks Systems v. Commissioner of Customs, New Delhi held as under : "Refnd - Finalization of provisional assessment - Suo motu refund to be given by departmental authorities where refund arises due to finalization of provisional assessment - Limitation not involved in either making recovery or giving refund - Section 18(2) of Customs Act, 1962." 38. Therefore the refund claim in respect of the said five Bills of Entry is not hit by limitation clause. The Adjud....