TaxTMI 
TaxTMI 
TaxTMI 
2018 (7) TMI 1014
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.... made provisional. The appellant during the provisional assessment filed 13 refund claims on 12.08.2002 for the excess duty paid. During the period April 2003 to September 2003, the bills of entry were finally assessed. On 04.06.2004, the Assistant Commissioner of Customs sanctioned the refund claims filed by the appellant in entirety for an amount of Rs. 55,63,326/-. The customs department preferred appeals against the refund sanction order before the Commissioner (Appeals). The Commissioner (Appeals) vide order in appeal No. 134-146/JMN/2005 dated 27.07.2005 set aside the refund sanctioning orders and directed the lower authority to serve the final assessment orders, if any, along with the attested copies of bills of entry finally assessed. The appellant being aggrieved by the order of the Commissioner (Appeals) dated 27.07.2005 preferred appeals before this Tribunal. The Revenue also filed cross objections in the appeals filed by the appellant. The Tribunal by common order dated 04.02.2009 disposed of the appeals upholding the order of the Commissioner of Customs (Appeals) to the extent of containing direction to serve copies of assessed bills of entry to the appellants. During ....
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....ation of the assessment. Even during the provisional assessment, the issue of excess payment on the goods not imported was not in dispute, therefore, there is no question of challenging the assessment of bill of entry in order to claim the refund. He submits that in the facts of the appellant's case, the refund is admissible without challenging the assessment. In this regard, he placed the reliance on the following judgments: * Aman Medical Products Ltd. vs CC Delhi 2010 (250) ELT 30 (DEL) * Secure Meters Ltd. vs CCE New Delhi 2016 (333) ELT 303 (DEL) * Ashwin Vanaspati Indus. Pvt. Ltd. vs CC Kandla 2012 (280) ELT 158 (Tri.-Amd) * CC (ACC & IMP), Mumbai vs Andrew Telecom India P. Ltd 2014 (306) ELT 503 (Tri.-Mum) * Aman Medical Products Ltd. vs CC, Delhi 210 (250) ELT 30 (DEL) * Ferromatik Milacron India Ltd. vs CC (Import), JNCH, Sheva 2014 (311) ELT 728 (Tri-Mum) * Reliance Industries Ltd. vs CC Ahmedabad 2009 (238) ELT 753 (Tri. Ahmd) * JSW Steel Ltd. vs CC Chennai 2009 (234) ELT 116 (Tri-Chennai) * Mangalore Refinery & Petrochemicals Ltd. vs CC Mangalore 2015 (323) ELT 433 (SC) 3. Sh. L. Patra, Ld. Assistant Commissioner (AR) appearing on behalf of the Revenu....
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....refund claim. There is no dispute about the appellants' entitlement to claim on merits. The only objection by the Revenue is that, the final assessment order has not been challenged. For the said disputed issue, the findings arrived at by Commissioner (Appeals) are relevant, which we are reproducing. "5. I have carefully considered the facts of the case, the grounds of appeal and the submissions made by the respondent. The impugned order was passed on 04-6-2004. The Commissioner of Customs (Preventive), Jamnagar, directed, in exercise of the provision in sub section 129D(2), the Adjudicating Authority to apply to the Commissioner (Appeals), on 27-4-2005, that is, within one year from the date of the impugned order. Also, the appeals were filed by the lower authority, on behalf of the Commissioner (Appeals), on 27-4-2005, this is, within three months from the date of authorization, as required under subsection 129D(4). So, the respondent's contention that the appeal were time barred was not correct. The main argument in the appeal is that the final assessment not having been challenged by the importer, the refund could have been granted. It is true that the importer respondent was ....
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.... of bulk liquid cargo is no longer res integra. It is now well settled that the assessment has to be done on the basis of the shore tank quantity. All the decisions relied on by the learned advocate of the respondent clearly state that in respect of the bulk liquid cargo, assessment has to be done only on the basis of the shore tank quantity. The ld. Commissioner (Appeals) has considered all the aspects into account and he has clearly held that the respondents are entitled for the refund claim. He had also dealt with the contention of the Revenue that the respondent had not challenged the assessment and therefore, they were not entitled for the refund claim. In other words, Revenue contends that without challenging the assessment, refund claim cannot be filed. After going through the records, the Commissioner (Appeals) has come the conclusion that even before the assessments were finalized and when they were provisional, the respondent contended that duty should be paid only on the basis of the shore tank quantity in terms of the various decisions and board's instruction and therefore, they filed refund claim. But, the refund papers filed by the respondents were returned by the dep....