2014 (12) TMI 1207

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....ded. The claim of the appellant is that the said imported goods, i.e., Indigo Vat Blue is used as dying agent in the manufacture of denim fabrics in their own factory. The appellant's claim was that notification provides exemption to "Finishing Agents, dye carriers to accelerate the dying or fixing of dye stuffs, printing paste and other products and preparations of any kind, used in the same factory for the manufacturer of textile and textile articles" falling under Chapter sub-heading No. 3204 or 3809 of the first Schedule to the CETA, 1985. The adjudicating authority rejected the refund claim of the appellant on the grounds that : (i) The appellant has not challenged the assessment of Bills of Entry. In view of judgment of Priya Blue Industries Ltd. v. Commissioner - 2004 (172) E.L.T. 145 refund claim is not maintainable when no appeal is filed against the assessment. (ii) The appellant imported VAT "Indigo Vat Blue" falling under CTH 3204 15 54 which is used as dying agent in the manufacture of Denim Fabrics. These goods are categorically stated as dye. The dye is not covered under Serial No. 133 of Notification No. 12/2012-C.E. which reads "Finishin....

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.... upheld the rejection of refund claim and rejected the appeal of the appellant. Hence, the appellant is before us. 4. The learned Counsel for the appellant submits that the appellant has bonafidely mistaken in non-claiming the exemption Notification No. 12/2012-C.E., dated 17-3-2012 (Serial No. 133) due to ignorance about the availability of the said notification. He submits that as per the Commissioner (Appeals)'s order the eligibility of the exemption notification is no more under dispute as the same attained finality particularly when the Revenue has not challenged the said findings of the Commissioner (Appeals). It is his submission that when there is no dispute as regards the eligibility of exemption notification there is no need to challenge the assessment of bills of entry in order to claim the refund. He further submits that in the present case, it is a case of self assessment of bills of entry and there is no assessment order by any proper officer. Therefore, there is no need to challenge the self assessed bills of entry. In the present facts of the case, the ratio of the Hon'ble Apex Court judgment in the case of Priya Blue is not applicable. The learned Counsel h....

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....Revenue has not challenged the same, the impugned order to that extent attained finality. As regards the issue whether the appellant is required to challenge the assessment of bill of entry in order to claim the refund of excess paid duty, we are of the view that there is no dispute on the eligibility of the exemption notification which holds the position that there is no lis between the assessee and the Revenue. The appellant is therefore, not required to challenge the assessment of bill of entry for claiming the refund of excess paid duty. As regards the reliance placed by the Revenue that assessment of bill of entry is compulsory in view of the Apex Court judgment in the case of Priya Blue Industries (supra). We have carefully observed that the judgment was pertaining to the previous period when the provisions of claim for refund of duty under Section 27 was worded as under :- "Section 27. Claim for refund of duty. - (1) Any person claiming refund of any duty - (i) paid by him in pursuance of an order of assessment; or (ii) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant C....

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.... and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs - (a)     in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year. (b)     in any other case, before the expiry of six months, from the date of payment of duty and interest, if any, paid on such duty in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excise and Customs Laws (Amendment) Act, 1991, such application....