TaxTMI 
TaxTMI 
TaxTMI 
2018 (4) TMI 978
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....26174 dated 3.5.2012, the appellant had claimed the exemption under Sl. No. 198 of Notification No. 12/2012 dated 17.3.2012, which attracts Basic Custom Duty @ 20% advalorem. The Bills of Entry were assessed provisionally for want of proper identification of the goods through chemical examination. The said Bills of Entry were finally assessed by the Customs department on 08.06.2012, in accepting the declared assessable value and the duty exemption, as claimed by the appellant. 1.2 Later on, the appellant had filed the refund application on 23.07.2012 for Rs. 7,83,222/-, on the ground that the Palm Acid Oil of CTH 38231900 also covered under Sr. No. 445 of the Notification No. 46/2011 dated 1.6.2011, as amended, which provides concessional ....
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....ting the assessing authority to file the appeal before the Commissioner (Appeals), on the ground that the assessment order was not challenged by the appellant and that the appellant had not produced any evidence to show that it had borne the full incidence of duty. The appeal filed by the department was disposed of by the ld. Commissioner (Appeals) vide order dated 9.10.2013 (referred to in the impugned order), in allowing the appeal in favour of the respondent-Revenue. In the impugned order, the ld. Commissioner (Appeals) has held that refund claim contrary to the assessment order is not maintainable, without order of assessment having been modified in appeal or reviewed under the statute. Further, he has also held that the doctrine of unj....
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....d the findings recorded in the impugned order and further submitted that assessment made in the Bill of Entry at the time of provisional as well as its finalisation, was entirely on different ground, than the stand taken by the appellant in the refund application. Thus, he submitted that since the appellant had not challenged the order of assessment and claimed the benefit of some other notification belatedly, rejection of refund claim by the Commissioner (Appeals) is sustainable under the law. To support such stand, the ld. DR has placed reliance on the judgement of Hon'ble Madras High Court in the case of CC(A) Vs. ACE Designers - 2015 (329) ELT 109 (Mad.). He also submitted that doctrine of unjust enrichment is applicable in this case an....
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.... in the amended Section 27 ibid (w.e.f. 08.04.2011). Thus, under the amended provisions of Section 27 of the Act, any amount paid can be claimed as refund. In this case, since the appellant had claimed the benefit of the above referred notification and the same was also considered by the Department as genuine, the appellant should be entitled for the refund claim in respect of the excess duty paid by it. The judgement of Hon'ble Supreme Court in the case of Flock (India) Pvt. Ltd. (Supra) and Priya Blue Industries Ltd. (Supra) are distinguishable from the facts of the present case inasmuch as, those judgments were delivered under the un-amended provisions of Section 27 ibid. In the present case, since the bills of entry were filed and duty ....
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....of being credited to the Consumer Welfare Fund. The only relevance as far as payment of duty under protest is concerned is indicated in the second proviso to sub-section (1) of Section 27 of the Act which states that the limitation of one year shall not apply in such event. In other words, whether or not the duty is paid under protest once an application for refund is made in the requisite manner and form as prescribed, it is incumbent on the authority to deal with such an application. Where there is an assessment order, the authority will take it into account in deciding the application for refund. If such assessment order has been reviewed or modified in appeal such further order will obviously be taken into account. In other words, under....