2020 (4) TMI 840

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....r due process of law, the original authority rejected the refund claim stating that the Notification No.S.O. 102 (E) dt. 07.02.2009 exempting levy of CESS on sugar is not applicable to the refund claim of the appellant and also that since the respondents have not challenged the assessment they are not eligible for refund. An appeal was filed before the Commissioner (Appeals) by the assessee respondents and vide the order impugned herein the Commissioner (Appeals) held that appellants are eligible for refund. Hence this appeal. 2. On behalf of the department, Ld. A.R Ms. T. Usha Devi appeared and argued the matter. It is submitted by her that sugar cess is collected on imported raw sugar as part of additional duty of customs levied under ....

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....6 (SC) would be applicable and the refund claim is not sustainable. The Commissioner (Appeals) ought not to have allowed the appeal. 4. Ld. Counsel Shri M.N. Bharathi appeared on behalf the respondent. It is submitted by him that Commissioner (Appeals) in para-4 has correctly analyzed the facts and the law applicable in the present case. Appellants had imported raw sugar which was used for manufacture of sugar and removed on payment of Central Excise duty. As per Section 3 of Sugar Cess Act, 1982 cess is leviable as the duty of excise on sugar manufactured by any sugar factory. Thus appellants have paid sugar cess while removing the manufactured sugar from their factory. The present refund claim relates to the sugar cess paid by them und....

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....st. The marking of protest itself gives information to the department that there is requirement for re-assessment. Assessment under Section 17 of Customs Act, 1962 cannot be said to be finalized when respondent has marked the protest while paying duty. In case, respondents had paid the entire duty without any mark of protest, in order to claim refund they have to request for reassessment of Bill of Entry. The mark of protest is an information to the department that the respondent is not making payment of cess voluntarily and then department has to initiate proceedings to vacate protest and pass speaking order for reassessment. If the department fails to do so the respondents cannot be put to any disadvantage of rejecting the refund claim. W....