TaxTMI 
TaxTMI 
2015 (4) TMI 990
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....was re-imported and, therefore, the first respondent claimed the benefit of Notification No.94/96-Cus dated 16.12.1996. According to the 1st respondent, it re-imported the goods in order to avoid demurrage charges, therefore, SAD was paid, though it was not required by law. The bill of entry was assessed and the goods were allowed to be cleared on the basis of the said claim. Thereafter, a refund claim was made on 11.10.01 on the ground that the above-stated machine, originally exported, had to be re-imported as payment was not received. A plea was made that goods of Indian origin was exempt from customs duty under Notification No.94/96-Cus. and only countervailing duty is leviable and the excess duty claimed is to be refunded. Placing reliance on Section 20 of the Customs Act, 1962, the Deputy Commissioner of Customs came to hold that in the present case, the Notification 94/96-Cus. alone is applicable and the benefit of Notification No.18/2000-Cus. will not be applicable. The plea of the 1st respondent that Section 3A is applicable only to imported goods and not to re-imported goods was negatived by placing reliance on the provisions of Section 20 of the Act. For better clarity, ....
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.... Commissioner (Appeals) also came to hold that the assessment and Bill of Entry depicts goods, which are exempted only from customs duty by enforcing Notification No.94/96 Sl.No.1(E) and not the very levy of additional duty, which is equivalent to excise duty. The Commissioner (Appeals) further held that the goods are not exempted from levy of additional duty and Notification No.18/2000-Cus. is not enforceable. The Commissioner (Appeals) further held that there was nothing to hold that the order of the lower authority denying the benefit of Notification No.18/2000-Cus. dated 1.3.2000 is per se illegal and, consequently, the rejection of refund by the lower authority was in order. The Commissioner (Appeals) also went into the scope of Notification No.18/2000-Cus. vis-a-vis Notification No.94/96-Cus., the the relevant portion of the order, for better clarity is extracted hereinbelow :- "Not withstanding the above position of the facts of the case, on perusal of Sl. No.31 of the Notification No.18/2000-Cus. dated 01.03.2000, I find that all goods which are exempted from (a) the whole of duty of Customs leviable thereon under the first schedule and (b) the whole of the additional duty....
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....mmissioner (Appeals) also held that it is an admitted case that duty was collected pursuant to the order of assessment and the question of refund of duty does not arise till the order of assessment is lawfully modified to the benefit of the claimant. The Commissioner (Appeals) clearly held that the Officer, considering the refund claim, cannot review or modify the assessment order and to substantiate the same, placed reliance on the decision of the Supreme Court in Priya Blue Industries Ltd. - Vs - Commissioner of Customs (Preventive) (2004 (172) ELT 145 (SC)). The Commissioner (Appeals) also held that the refund claim is not an appeal proceedings and the Officer considering the refund claim cannot sit in appeal over the assessment made by a competent officer. Consequently, rejecting the appeal, the following order was passed :- "Notwithstanding the legal positions and facts of the case discussed supra, it is anybody's case that the amount of duty was collected in pursuance to the orders of assessment. Hence, the question of refund of duty does not arise till the order of assessment is lawfully modified to the benefit of the claimant and the lower authority, the officer consid....
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.... held by the Supreme Court in a catena of decisions, more particularly the decision in Priya Blud Industries case (supra). It is further submitted by the learned standing counsel for the appellant that the importer having not claimed the benefit of Notification No.18/2000 either before the goods were assessed by the proper officer or during assessment and cleared it after payment of duty, cannot, at a belated stage, i.e., at the time of refund proceedings, contend that the 1st respondent is entitled to the benefit of Notification No.18/2000 and, therefore, is eligible for refund. It is the further stand of the appellant/Revenue that the said Notification No.18/2000 and so also Section 3A of the Customs Tariff Act, makes no distinction between imports of indigenous and non-indigenous goods and, therefore, the distinction drawn by the 1st respondent on the above aspect cannot be sustained. Further the Bill of Entry shows that the goods were exempt only from customs duty by enforcing Notification No.94/96 and not from additional duty, which is equivalent to Excise duty. The Commissioner (Appeals) has rightly held that the 1st respondent is not entitled to refund, which has not been ap....
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....the Order of Assessment was not correct and could claim refund on that basis even without filing an Appeal. 6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India)'s case (supra). Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order. 7. We also see no substance in the contention that provisions for a period of limitation indicates that a refund claim could be filed without filing an Appeal. Even under Rule 11 under the Excise Act the claim for refund had to be filed within a period of six months. It was still held, in Flock (India)'s case (supra), that in the absence of an Appeal having been filed no refund claim could be made. The words "in p....