TaxTMI 
TaxTMI 
2018 (5) TMI 1243
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.... duty payable was 5% only. Thereafter the appellant filed refund claim of excess duty paid. The Assistant Commissioner of Customs rejected the claim stating that the assessment was final in terms of Section 17 of the Customs Act, 1962 and he had no power to modify or review the original assessment on the basis of Priya Blue Industries case. Aggrieved by the said order, the appellant filed appeal before the Commissioner of Customs (Appeals) who also rejected the same. Aggrieved by the said order of the Commissioner, the appellant filed appeal before this Tribunal and the Tribunal after considering the submissions of the parties, upheld the impugned order by dismissing the appeal of the appellant. Aggrieved by the said Final Order No.20379/2017 dt. 16/03/2017, assessee/appellant filed appeal before the Hon'ble High Court of Kerala and the Hon'ble High Court vide its order dt. 19/12/2017 set aside the order passed by the Tribunal and remanded the case back to the Tribunal with the direction to pass fresh orders duly adverting to the contention and giving reasons for its conclusions, On remand, the case was listed today. 3. I have heard both sides and perused the recor....
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....man Co. Ltd. cited supra has also considered the decision of the Supreme Court in the case of Priya Blue case and has distinguished the same. The appellant also relies upon the Hon'ble Delhi Tribunal decision reported in 2016-TIOL-2370-CESTAT-DELHl in the case of CC, New Delhi Vs. Kent RO Systems Pvt. Ltd. wherein the Hon'ble Tribunal held that there was no 'lis' between Revenue and assessee on account of non-claiming the notification in question. It is only subsequently the assessee filed the refund claim. The only objection of the Revenue relates to challenge to assessed Bills of Entry and nowhere in the grounds of appeal, they have raised any contention that notification was not available to the assessee. As such, the only issue required to be decided is as to whether the non-challenge of the Bill of Entry can be considered as a bar for claiming refund and such a situation has already been considered by the Delhi High Court in the Aman Medical products Pvt. Ltd case cited supra. Appellant further relies on the Hon'ble Madras High Court decision in the case of Micromax Informatics Ltd. [2017-TIOL-1302-HC-MAD-CUS] wherein the High Court has held "a perusa....
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.... Ltd. [2009(240) ELT 567 (Tri. Mum.)] vii. Excel Cropcare Ltd. [2008(226) ELT 602 (Tri. Ahmd.)] viii. Ranbaxy Laboratories Ltd. [2008-TIOL-1714-CESTAT-MUM] ix. Indian Potash Ltd. [2016(339) ELT 140 (Tri. Ahmd.)] 7. After considering the submissions of both parties and perusal of records and after going through the various decisions relied upon by both the parties, I find that in the present case, there is no lis between the Department and the appellant in claiming the benefit of Notification No.52/2011. I also find that there was no Order-in-Original passed by the Assistant Commissioner. Further I find that both the authorities below rejected the refund claim relying upon the Priya Blue and Flock (India) Ltd. decisions cited supra and have failed to distinguish the issue involved in the Priya Blue and Flock (India) case and in the present case. In an identical issue, the Division Bench of this Tribunal in the case of Bennet Colman and Co. cited supra has considered both the decisions of the apex court in the case of Priya Blue and Flock (India) Ltd. and had distinguished the same and has relied upon the decision of the apex court in the case of Shree H....
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....ch was passed and consequently it was held that where an adjudicating authority passed an order which is appealable and the party did not chose to exercise the statutory right of 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 adjudicating authority had committed an error in Passing his order. These judgments will therefore not apply when there is no assessment order on dispute/contest, like as is in the facts of the Present case. 9. Further I also find that the Division Bench of the Delhi High Court in the case of Micromax Informatics Ltd. has held as under:- Refund - Excess duty payment - Assessment order, necessity of challenge - Adjudicating authority rejecting refund claim on the ground that self-assessment not challenged and hence refund not admissible for a finalized assessment - Clearly erroneous view taken by said authority having not considered High Court's decision in 2010 (250) E.L.T. 30 (Del.) wherein it was decided that challenge to assessment order not required for claiming refund - In any case, amended P....
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....earned AR has relied upon the decision of the Madras High Court in the case of ACE Designers cited supra but them n been distinguished by the Madras High Court in the case of Micromax Informatics Ltd. Further it is pertinent to produce the observation of the Delhi High Court in the case of Micromax Informatics ltd. where the Division Bench noticed the reasoning of the High Court in the case of Aman Medical Products Pvt. Ltd. and also the amendments made in Section 27 of the Act, w.e.f. 08/04/2011. The necessary observation in paragraph 12 to 14 are reproduced below:- 12. An important change that has been made is that a person can now claim refund of any duty or interest as long as such duty or interest was paid or borne by such person. The conditionality of such payment having been made pursuant to an order of assessment does not exist. Secondly, once an application is made under Section 27(I) of the Act, it is incumbent on the authority concerned to make an order under Section 27(2) determining if any duty or interest as claimed is refundable to the applicant. The proviso to Section 27(2) of the Act sets out the instances where refund should be paid to the claimant ....