TaxTMI 
TaxTMI 
2019 (1) TMI 730
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.... at the time of clearance. S No B/E Number & Date TR-6 Challan No & Date Amount 1 85524 dtd 15.01.2010 10322879 dtd 19.01.2010 6905756 2 911004 dtd 23.02.2010 10364127 dtd 24.02.2010 861070 3 885303 dtd 05.02.2010 10345047 dtd 09.02.2010 3566825 11333651 2.2 The goods imported by the appellants as per them were exempted under Notification No 21/2002-Cus dated 01.03.2002 Sl No 155). However inadvertently they filed the Bill of Entry and assessed the goods without claiming the benefit of said exemption. They paid the duty assessed. 2.3 Later on realizing their mistake they filed the refund claim in respect of the duty paid by them in respect of the goods imported by them under the said three B/E's, by claiming the benefit of exemption under notification No 21/2002-Cus. 2.4 The refund claim filed by the appellants was rejected by the Deputy Commissioner holding as stated in para q, supra. On appeal Commissioner (Appeal) upheld the order of Deputy Commissioner. 2.5 Aggrieved by the order of Commissioner (Appeal), Appellants are in appeal before us. 3.1 We have heard Shri A B Nawal Advocate f....
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....02.2010. It is noticed that the importer has not produced any evidence regarding having filed an appeal with the Appellate Authority against the above referred 3 Bills of Entry, and having the decision of the Appellate Authority in their favour setting aside the assessment done under Section 17 of the Customs Act, 1962. As such a Personal Hearing was held on 15.11.2010 when Mr. Venktesh Iyer, Consultant appeared for the same. During the Personal Hearing he submitted that the authorization letter has already been submitted along with the refund application, the exemption Notification No.21/2002-Cus. dated 01.03.2002 (Sr.No. 155) was in existence on the day filing the Bills of Entry & stated that it is settled law when the exemption prevails on the day of importation which should be allowed, there was no need to file any appeal as the refund claim was submitted within the stipulated time period under section 27 of Customs Act, 1962, he prayed that due to genuine error by the Currency Note Press, wholly owned Govt. of India, the duty was paid, which otherwise was not payable. The Govt. does not get unduly enrichment by the small amount of Rs. 1,13,33,651/- but being auditable point he....
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.... observed that section 149 empowers proper officer to permit amendment of the Bill of Entry. However, the present appeal has not been filed against an order of rejection of the appellant's application for amendment of B/E under Section 149. The appeal has been filed against rejection of refund and not against any order refusing amendment in the Bill of Entry. The above two are separate issues. The appellant had not filed any application before the Assistant Commissioner for amendment of Bill of Entry under Section 149 and got the same amended before seeking the refund vide their aforesaid letter dated 4.10.2010. What they had sought was refund of excess duty paid. Further, it is observed that question of reassessment of Bill of Entry under Section 149 came up before Hon'ble Madras High Court in the case of Commissioner of Customs, Tuticorin Vs. Thiru Arooran Sugars Ltd. - 2010 (254) ELT 45 (Mad.) and the Hon'ble High Court held that the Dy./Asstt. Commissioner was justified in rejecting the amendment of B/E under Section 149 when it involved re-quantification of duty. 7. The appellant has also argued that the exemption was not claimed at the time of assessment because the applic....
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....hich the duty is levied is declared unconstitutional by a court; that is a separate category and the discussion in this paragraph does not include that situation. In other words, we are dealing with a case where the duty was paid on account of mis-construction, mis-application or wrong interpretation of a provision of law, rule, notification or regulation, as the case may be.) Is it open to the manufacturer to say that the decision of a High Court or the Supreme Court, as the ease may be, in the case of another person has made him aware of the mistake of law and, therefore, he is entitled to refund of the duty paid by him? Can he invoke Section 72 of the Contract Act in such a case and claim refund and whether in such a case, it can be held that reading Section 72 of the Contract Act along with Section 17(1)(c) of the Limitation Act, 1963, the period of limitation for making such a claim for refund, whether by way of a suit or by way of a writ petition, is three years from the date of discovery of such mistake of law? Kanhaiyalal is understood as saying that such a course is permissible. Later decisions commencing from Bhailal Bhai have held that the period of limitation in such ca....
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....and the Rules made thereunder including Section 11B/Rule 11 too constitute "law" within the meaning of Article 265 and that in the face of the said provisions - which are exclusive in their nature - no claim for refund is maintainable except under and in accordance therewith. The second basic concept of law which is violated by permitting the above situation is the sanctity of the provisions of the Central Excises and Salt Act itself. The Act provides for levy, assessment, recovery, refund, appeals and all incidental/ancillary matters. Rule 11 and Section 11B, in particular, provide for refund of taxes which have been collected contrary to law, i.e., on account of a mis-interpretation or misconstruction of a provision of law, rule, notification or regulation. The Act provides for both the situations represented by Sections 11A and 11B. As held by a seven - Judge Bench in Kamala Mills, following the principles enunciated in Firm & Illuri Subbaiya Chetty, the words "any assessment made under this Act" are wide enough to cover all assessments made by the appropriate authorities under the Act whether the assessments are correct or not and that the words "an assessment made" cannot mean....
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....a different view of law is taken. If this theory is applied universally, it will lead to unimaginable chaos. It is, however, suggested that this result follows only in tax matters because of Article 265. The explanation offered is untenable as demonstrated hereinbefore. As a matter of fact, the situation today is chaotic because of the principles supposedly emerging from Kanhaiyalal and other decisions following it. Every decision of this Court and of the High Courts on a question of law in favour of the assessee is giving rise to a wave of refund claims all over the country in respect of matters which have become final and are closed long number of years ago. We are not shown that such a thing is happening anywhere else in the world. Article 265 surely could not have been meant to provide for this. We are, therefore, of the clear and considered opinion that the theory of mistake of law and the consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by an assessee taking advantage of the decision in another assessee's case. All claims for refund ought to be, and ought to have been, filed only under and in accordance with Ru....
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....or that the assessee may file appeal against the order before the Collector (Appeals) if so advised." 4.6 In case of Priya Blue referred to by Learned Authorized Representative, Hon'ble Apex Court held as follows: "5. Under Section 27 of the Customs Act, 1962 a claim for refund can be made by any person who had (a) paid duty in pursuance of an Order of Assessment or (b) a person who had borne the duty. It has been strenuously submitted that the words "in pursuance of an Order of Assessment" necessarily imply that a claim for refund can be made without challenging the Assessment in an Appeal. It is submitted that if the assessment is not correct, a party could file a claim for refund and the correctness of the Assessment Order can be examined whilst considering the claim for refund. It was submitted that the wording of Section 27, particularly, the provisions regarding filing of a claim for refund within the period of 1 year or 6 months also showed that a claim for refund could be made even though no Appeal had been filed against the Assessment Order. It was submitted that if a claim for refund could only be made after an Appeal was filed by the party, then the provisions rega....
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....he Deputy Commissioner of Customs vide his orders dated 31-7-2000. 2. Against this order of the Deputy Commissioner, the assessee filed the appeal. It appears from the reading of the orders dated 18-5-2006 [2006 (201) E.L.T. 503 (Tribunal)] passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') in the said appeal that the CESTAT has merely gone into the issue of classification and has not dealt with the issue which was really involved, viz., whether the respondent was entitled to refund or not. That appeal, in any case, against the order of rejection qua refund claim preferred by the assessee was not maintainable as held by this Court in Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) [2005 (10) SCC 433]." 4.8 In case of Maharastra Cylinders Pvt Ltd., supra Hon'ble Bombay High Court held as follows: "8. Where the goods are cleared under the self removal procedure basis on approved classification list and approved price list, the clearances are on self assessment and unless such self assessment is varied or altered, the question of refunding the duty paid on self assessment does not arise at all. The Apex Co....
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.... 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 2002 (143) E.L.T. 482 (S.C.) 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 laid down by the Apex Court in the case of the Priya Blue Industries Ltd. (supra) would be applicable. The Tribunal has rightly held in t....
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....13. In Karnataka Power Corporation Ltd. case (supra), we find that a formal application for re-assessment of duty was made together with a refund of a part of the duty paid on the ground that the classification has to be correctly done. Therefore, both on the issue of classification and refund was at large. In those circumstances, the point at issue was whether, when a new classification is suggested before the appellate authority, the consequent relief flowing out could be held to be time barred. In that case, it is clear from the order that the appellant had sought for amendment before the Assistant Commissioner of Customs and in that view of the matter, refund was claimed. Therefore, the issue was at large before the competent authority. The facts, as narrated above, would reveal that the decision in Karnataka Power Corporation case (supra) relied on by the Tribunal is distinguishable on facts, as the issue on classification as well as refund was at large before the appellate authority. However, in the case on hand, such is not the case, as the order of assessment has not been challenged and the assessment has reached finality. 14. The distinction, as detailed above, which is....
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....try but at that time had not claimed exemption. The competent officer proceeded to assess them to duty even though he was obliged not to do so in view of the exemption Notification prevailing at that time 12/2012- Cus., dated 17-3-2012. The assessee realized that it had omitted to claim the benefit available to it and sought refund of the duty, i.e., of Rs. 6,76,165/- which was initially rejected by the Deputy Commissioner on the ground that the bills of entry had not been challenged. The assessee's appeal was, however, allowed by the Appellate Commissioner in view of this Court's judgment in Aman Medical Products Ltd. v. CC, Delhi, 2010 (250) E.L.T. 30 (Del.) which considered the Supreme Court's decision in Priya Blue Industries Ltd. v. Commissioner of Customs, 2004 (172) E.L.T. 145 (S.C.). The Court held that where the duty had been paid by the assessee without an order of assessment and there was no lis pending between the parties then in such a situation, the refund claim of the assessee could not be rejected merely on the ground of non-filing of appeal against the bills of entry, which had subsequent attained finality." The said decision of Delhi High Court is based on its ....