TaxTMI 
TaxTMI 
2016 (3) TMI 939
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.... of the appellant to pay the cost recovery charges?" 4. Briefly, the facts of the case are that the Appellants are engaged in the manufacture of sea-going vessels and imported capital goods/equipments like gear boxes, steering system and navigational, life and sound equipments for use in the manufacturing process and were granted licence bearing no. 01/04 dated 27.01.2004 which was renewed up to 31.12.2007 under Sections 58 and 66 of the Customs Act, 1962 for deposit of the imported dutiable goods in a private bonded warehouse and utilization of such goods in terms of Regulation 5 of the Manufacture and other Operations in Warehouse 1966 on execution of the bond, and the sanction was accorded to the Appellants to carry out manufacturing process and other operations. In terms of Regulation 6 of the said Regulation, the Assistant Commissioner of Customs or Deputy Commissioner of Customs, Officers of the Custom were posted at the bonded warehouse of the Appellants and the manufacturing activity was carried out under their supervision. The Department later raised a claim of Rs. 10,84,450/- for the period from 22.09.2004 to 04.11.2007 against which an amount of Rs. 6,89,096/- was paid ....
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.... excessive amounts were paid towards the cost recovery based on a demand by the Respondents which the Assistant Commissioner by Order dated 03.03.2008 came to the conclusion that the cost recovery charges were rightly paid. Learned Counsel further pointed out that the said Order was challenged under Section 128 of the Customs Act, 1962 wherein the learned Commissioner found that the Appellant has a strong case on merits as no costs recovery was due for the period when no Officer was posted at the warehouse, but, however, rejected the Appeal since the Appellants had not challenged the Order demanding costs recovery charges. Learned Counsel further pointed out that these findings of the authorities below are totally erroneous and, as such deserves to be quashed and set aside. Learned Counsel further pointed out that on these technical grounds, the refunds which the Appellants are entitled should not be refused and, as such, the impugned Order be quashed and set aside. 6. On the other hand, Shri C. A. Ferreira, learned Counsel appearing for the Respondent, has supported the impugned Orders. Learned Counsel has pointed out that the demand was made after an adjudication and, as such, u....
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....Central Excise, Kanpur vs. Flock (India) Pvt. Ltd., observes at para 10 thus : "10. Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position, in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot be countenanced. The view taken by us also gain support from the provision in Sub-rule (3) of Rule 11 wherein it is laid down that where as a result of any order passed in appeal or revision under ....
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....f repeated requests reasoned order is not passed, proceedings can be initiated for setting aside the assessment order passed on the bill of entry. In the present case, save and accept writing letters no proceedings have been initiated for setting aside the assessment order. Therefore, the fact that the assessing officer has not passed a speaking order would not entitle the appellant to claim partial refund of duty paid as per the assessment order. 9. Strong reliance was placed by the Counsel for the appellant on the decision of the Apex Court in the case of Karnataka Power Corporation Ltd. v. Commr. Of Cus. (Appeals), Chennai reported in MANU/SC/0633/2002: 2002 (143) ELT 482 (SC) followed by the Tribunal in the case of Telco Ltd. (supra). Both the aforesaid decisions have no relevance to the facts of the present case, because, in both the above cases, the Apex Court as well as Tribunal have remanded the matter back to the adjudicating authority to consider the application of the importer regarding the reclassification of the goods as well as the refund flowing therefrom. In the present case, the question raised is, where reasoned assessment order is not passed, whether the ratio l....