TaxTMI 
TaxTMI 
TaxTMI 
2014 (3) TMI 245
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....rom payment of Additional duty of Customs under Section 3 of Customs Tariff Act, 1975. The lower adjudicating authority rejected the refund claim, by relying upon the Hon'ble Supreme Court decision in the case of Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) reported in 2004 (172) E.L.T. 145 (S.C.) on the ground that the respondent has not challenged the assessment and on the ground that on the date of filing of ex-bond Bill of Entry dated 1-3-2011, the Notification No. 32/2011, dated 24-3-2011, was not in force. Aggrieved by the same the respondent filed an appeal before the learned Commissioner (Appeals) who vide his impugned order allowed the appeal filed by the respondent. Hence this appeal. 4. The contention of the learned A.R. is that the respondent has paid the duty as per their Bill of Entry, assessed. The contention is that the respondent has not challenged the assessment. Therefore, as per the Hon'ble Supreme Court decision in the case of Priya Blue Industries Ltd. (supra) the respondents are not entitled for refund. The contention is that on the date of filing of ex-bond Bill of Entry, the Notification No. 32/2011, dated 24-3-2011 was not in fo....
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....VD was introduced in 2011, the exemption of SAD appeared to be not available. The said inadvertent error was noticed by the Government and rectificatory measures were taken by Government immediately by amendment of Notification 20/2006-Cus., vide Notification No. 32/2011, dated 24-3-2011. It is pertinent to mention here that SAD was already exempted for import of barges and no subsequent amendment was brought to this effect till 2011. Notification No. 20/2006 for the matter under dispute did not require any amendment. However, the Government vide Notification No. 32/2011, dated 24-3-2011 again clearly mentioned that barges would be exempted from levy of SAD to clarify the intention of the statute. Such amendment was brought in to restore the long followed policy of the Government to keep barges exempted from levy of SAD which only due to a technical lapse in drafting appeared to be leviable during the intermittent period of 23 days. Therefore the amendment was clarificatory in nature. 5.2.2 The contention of the respondent is that the consistent policy of the Government to provide exemption, the exemption cannot be withdrawn only for a brief period. The later notification tha....
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....ike as is in the facts of the present case. 6. We, therefore, answer the question framed by holding that the refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 and which claim will fall under clause (ii) of sub-section (1) of Section 27." 6.1 Undisputedly there was no lis between the respondent and the Revenue at the time of payment of duty and this will not deprive the respondent of his right to file refund claim based on a subsequent clarificatory Notification. Hence the question of filing appeal against the order of assessment does not arise. 6.2 So far as the benefit of Notification is concerned, similar issue was before the Hon'ble Supreme Court in the case of W.P.I.L. Ltd. (supra) wherein the Hon'ble Supreme Court has held as under - "Having heard the learned counsel for the parties, in our opinion, the submission made on behalf of the appellant is well-founded and must be accepted. In this connection, our attention was invited by the learned counsel for the ....
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....th power driven pumps as well as parts of power driven pumps used for manufacturing pumps within the factory were exempted from payment of excise duty. We are also satisfied that notifications were rescinded and consolidated notification was issued on March 1, 1994 with a view to reduce number of notifications. No demand hence could have been made against the appellant in respect of parts of power driven pumps by issuing show cause notices. The submission of the appellant is well-founded that the Government was satisfied about the policy which was in vogue not to impose excise duty on parts of power driven pumps used in the factory premises for manufacture of power driven pumps and to clarify the position, the subsequent notification dated April 25, 1994 was issued. This is also clear if one reads as both the notifications Nos. 46/94, dated March 1, 1994 and 56/94 (sic 95/94), dated April 25, 1994. They read thus :- TABLE S. No. Chapter heading No. or sub-heading No. Description of goods Rate Conditions 1 2 3 4 5 1. 85.13 Power driven pumps primarily designed for Handling water, namely :- Nil (a) Central Pumps (horizon....