AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (9) TMI 1115
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....aimed the benefit of exemption under S. No. 5 of Notification 46/2011-Cus dated 1st June, 2011, whereunder "all goods other than vegetable material used primarily as broom or brushes (i.e. broom corn piassava etc) and raw vegetable materials of kind, used primarily in dyeing or tanning" imported from Indonesia, was entitled to partial exemption from payment of customs duty. 3. The customs authorities denied, to the petitioner, the benefit of exemption, under Notification 46/2011-Cus (supra), as claimed by it. The petitioner was, therefore, constrained to clear the fiber on payment of duty at the tariff rate of 30% ad valorem. The petitioner contends that, in the process, excess duty of Rs. 10,93,425/- was paid by it, albeit under protest. 4. The petitioner, thereafter, made a request, vide letter dated 2nd April, 2013, addressed to the customs authorities, for a speaking order, relating to assessment of the aforesaid fiber imported by it, under Section 17(5) of the Customs Act, 1962 (hereinafter referred to as "the Customs Act"). 5. Simultaneously, the petitioner filed three refund claims, dated 2nd April, 2013, seeking refund of the duty, purportedly paid by the petitioner in e....
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....ned letter dated 8th September, 2079, that the petitioner ought to have appealed against the assessment of the Bs/E filed by it, was without merit. In support of this submission, the petitioner relies on the judgment of this Court in Aman Medical Products Ltd. v. Commissioner of Customs, Delhi, 2010 (250) ELT 30 (Del) and UOI v. Micromax Informatics Ltd., 2016 (335) ELT 446 (Del). 10. The position in law, which was, heretofore, somewhat fluid, has been effectively stilled, by the recent judgment of the Supreme Court, rendered by a three Judge Bench of the Supreme Court on 18th September, 2019 in Civil Appeal No. 293-294/2009 (ITC Ltd. v. Commissioner of Central Excise, Kolkata IV). 11. Before adverting to the said decision, however, the position in law, as it existed prior thereto, and from which the petitioner seeks to draw sustenance, requires, briefly, to be adumbrated. C.C.E. v Flock India Ltd, 2000 (120) ELT 285 (SC) 12. The respondent Flock India Ltd (hereinafter referred to as "Flock"), in this case, who was a manufacturer of jute hessian, filed the Classification List, classifying's product under Tariff Item 22-A of the erstwhile Central Excise Tariff. The Revenue dispu....
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....t under tariff item 22-B is of no consequence." 14. The issue, as adumbrated hereinabove, was answered, by the Supreme Court, thus (in para 10 of the report): "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." Priya Blue Industries Ltd v. C.C. (Preventive), 2004 (172) ELT 145 15. The appellant Priya Blue Industries Ltd (hereinafter referred to as "....
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....al. Even under Rule 11 under the Excise Act the claim for refund had to be filed within a period of six months. It was still held, in Flock (India)'s case (supra), that in the absence of an Appeal having been filed no refund claim could be made. 8. The words "in pursuance of an Order of Assessment" only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in Appeal or reviewed a claim for refund can be maintained. 9. In our view, the ratio in Flock (India)'s case (supra) fully applies. We, therefore, see no substance in the Review Petition. Accordingly, the Review Petition stands dismissed with no order as to costs." 16. The position at law, as clearly enunciated in Flock (India) (Supra) and Priya Blue Industries Ltd (supra) was, therefore, that, without challenging the order of assessment, on the basis whereof duty, allegedly in excess had been paid, the assessee could not maintain a claim for refund, either under the Central Excise Act, or under the Customs Act.....
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....aid and, consequently, there was no contest or lis between the importer at the Revenue. Flock (India) (supra) and Priya Blue Industries Ltd (supra), it was held, applied in cases where duty was paid under clause (i) of Section 27(1), and not under clause (ii) as, whereas, in the former case, there existed an appealable order of assessment, no such order existed in the latter. In the absence of "an assessment order on dispute/contest", therefore, it was held that a refund claim would be maintainable, by the aggrieved importer, under Section 27 of the Customs Act, without requiring him to file, a priori, any appeal against the assessment of the Bill of Entry. Paras 4 to 6 of the decision of this Court may be reproduced thus: "4. If therefore we refer to language of Section 27, it is more than clear that the duty which is paid is not necessarily pursuant to an order of assessment but can also be 'borne by him'. Clauses (i) and (ii) of sub-section (1) of Section 27 are clearly in the alternative as the expression 'or' is found in between clauses (i) and (ii). The object of Section 27(i)(ii) is to cover those classes of case where the duty is paid by a person without an order of asses....
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....nd Priya Blue Industries Ltd (supra), on the ground that micromax had not appealed, against the assessment of its Bills of Entry. Micromax chose to challenge the said order, of the AC, directly before this Court, by way of a writ proceedings under Article 226 of the Constitution of India. 21. Reiterating the position of law enunciated by it in Aman Medical Products Ltd (supra), this Court held that, as duty had been paid by Micromax on self-assessment basis, it would be entitled to maintain the refund claim, without having to appeal against the assessment of the B/E. It was observed that, w.e.f. 8 April, 2011, Section 27(1) of the Customs Act, particularly clause (a) therein, had been amended, significantly. Prior to 8th April, 2011, Section 27(1) allowed a person, claiming refund of duty, "(i) paid by him in pursuance of an order of assessment, or (ii) borne by him, to apply for refund. The words "in pursuance of an order of assessment" had, it was noted, been deleted, from clause (i) of Section 27(1) which, after amendment, therefore, allowed the refund claim to be preferred by the person, claiming such refund, of any duty "(i) paid by him, or (ii) borne by him". This amendment,....
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....therwise that any statement in such bill of entry or document or any information so furnished was not true, he could have proceeded to reassess the duty. Where the assessment done under subsection (2) is contrary to the claim of the importer or exporter regarding valuation of the goods, classification, exemption or concession, speaking order shall be passed within 15 days from the date of assessment of the bill of entry or the shipping bill as the case may be as provided in section 17(5). 33. Under the provisions of section 17 as amended by Finance Act of 2011, section 17(1) has provided to self-assess the duty if any leviable on such goods by importer or exporter as the case may be. Self-assessment is an assessment as per the amended definition of section 2(2). It is further provided that proper officer may verify the self-assessment of such goods, and for this purpose, examine or test any imported goods or exported goods or such part thereof as may be necessary. The power to verify self-assessment lies with the proper officer and for that purpose under section 17(3), he may require the importer, exporter or any other person to produce such document and furnish such information,....
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....the Customs Act as amended by Finance Act, 2011 provides that any person claiming refund of any duty or interest paid or borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant or Deputy Commissioner of Customs before the expiry of one year from the date of payment of such duty or interest. If an application for refund has been made before Finance Bill received the assent of the President, it is deemed to be filed under the provision of section 27 (1) as existed and to be dealt with under section 27(2). The period of limitation of one year provided by the provisions of section 27 has to be computed in the case of goods which are exempt from payment of duty by a special order issued under section 25(2) from the date of issue of such an order as provided in section 27(1B)(a). Where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any Court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction. It is provided in Section 27(1B)(c) that where any duty is paid provisionally under Section 18....
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....r 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 was taken by us also gains support from the provision in sub rule (3) of Rule 11 wherein it is laid down that whereas a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act. Therefore, if an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for the refund which, if we may term it so, is in the nature of execution of a decree/order. In the case at hand, it was specifically mentioned in the order of the Assistant Col....
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....d under the Act, obviously it would be appealable by any person aggrieved thereby. The expression 'Any person' is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of reassessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self-assessment is an order of assessment as per section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of reassessment has to be passed under section 17(4). Section 128 has not provided for an appeal against a speaking order but against "any order" which is of wide amplitude. The reasoning employed by the High Court is that since there is no lis, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts (supra). 44. The provisions under section 27 cannot be invoked in t....
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....o flow on, undisturbed. 24. In view of the declaration of the law in ITC Ltd.(supra), it is obvious that the AC was correct in observing, in the impugned letter dated 12th September, 2017, that the petitioner ought to have appealed against the assessment of the three Bs/E filed by it. Any claim for refund could be maintained, by the petitioner, only after the assessment, of the three Bs/E, stood reversed on appeal. 25. Learned counsel appearing for the petitioner has fervently submitted that, if such a view is taken, his client would be rendered remediless, despite having paid duty in excess and being entitled, in principle, to refund thereof. He submits that, as the petitioner had demurred from filing any appeal against the assessment of the Bs/E of the aforesaid three Bs/E filed by it, only in view of the position in law as enunciated by this Court in Aman Medical Products (supra) and Micromax Informatics Products (supra), and this position stood reversed only on 18th September, 2019, by the judgment of the Supreme Court in ITC Ltd. (supra), it would be a travesty of justice if his client were to be denied the right of refund of the duty paid in excess merely because it had not....