TaxTMI 
TaxTMI 
2024 (3) TMI 418
X X X X Extracts X X X X
X X X X Extracts X X X X
....olute confiscation of the seized 36 Gold Biscuits weighing 4.199 Kg was adjudged 2.3 Aggrieved appellant preferred an appeal before CESTAT. Final Order No. C/498-503/2011-CU(DB) dated 22.11.2011, following was held: "21. Considering these aspects, we are of the view that absolute confiscation of the goods ordered by the Commissioner is not maintainable. Therefore, we give an option to the Appellants i.e M/s Panna Lal Banarasi Das to redeem the goods on payment of a redemption fine of 10% of the value of the goods for the seized goods i.e. on payment of Rs.2,18,350/- (Rupees Two lakhs eighteen thousand three hundred and fifty). While deciding this amount we have taken into account the long delay, since 2002, in releasing the goods to the owners. While redeeming the goods appellants have to pay Customs duties as applicable in terms of Section 125(2) of the Customs Act." 2.4 Thereafter Appellant filed an application on 27.01.2012 to ascertain the amount of Customs duty to be paid by them in compliance of the aforesaid Hon'ble CESTAT's order. He was informed vide letter dated 09.05.2012 and 18.05.2012 for depositing Customs duty amounting to Rs. 18,11,898/- (Rs. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for the long delay in release of the gold to him since seizure in 2002. The duty demanded is inequitable. 3.3 Arguing for the revenue learned authorized representative while re-iterating the findings recorded in the impugned order submits that this refund application is not maintainable. 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of argument. 4.2 Impugned order records as following: "6. I have gone through the case record. The point for determination is whether the appellant is required to pay duty on the current value of gold (at the time of release) or on the seizure value thereof. In this regard it is relevant to mention that seizure value is never meant for charging duty. For charging Customs duty, valuation has to be done under the provisions of the Customs Act. As the gold is subject to tariff valuation, the determination of the tariff value has to be done under section 15 of the said Act. 7. The appellant have argued that provisions of section 15 will not apply to baggage and postal imports. However, they could not produce any evidence to show that the impugned gold was imported either ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s weighing 4199.04 gms is to be determined at the rate available at present in view of Section 15(1)c of Customs Act, 1962 The plea taken by the party that the provisions of sec 15(1)c is not applicable to baggage and 6oods imported by post as the goods in question were not imported by proper import licence." 11. The provisions of Sec 77 refers to declaration made by the owner of any baggage before the proper officer. Thus, the said provisions are not applicable in this case under the facts and circumstances of the case. 12. In view of the foregoing, I find that the party was directed to deposit the duty in pursuance of Hon'ble CESTAT Final Order No. C/498-503/2011-CU(DB) dated 22.11.2011 vide this office letters dated 09.05.2012 and 18.05.2012 issued by the department. I observe that the party had not raised the questions of excess payment of Rs. 15,78,001/- (Rs. Fifteen lakhs seventy eight thousand one) at the time of depositing the duty. The party had deposited the duty as informed by the department and had not paid any excess duty. Thus, the refund claim made by the party vide application dated 19.10.2012 is not sustainable under the eyes of law as di....
X X X X Extracts X X X X
X X X X Extracts X X X X
....4.06.2012 deposited the additional duty as communicated by the Deputy Commissioner. From the perusal of the TR-6 challan it is evident that appellant had deposited the this amount, without any protest or questioning the determination of duty as per this letter. 4.6 From the letter as above it is evident that the these letters are in nature of assessment order determining the duty payable on the gold sought to redeemed as per the order dated 22.11.2011 of CESTAT. Appellant had not challenged the determination of the duty as per these letters/ assessment orders before the appellate authority and got the order modified in appeal. It is settled law that appellant refund claim wherein the order determining the duty is not challenged and modified in appeal by the appellate authority, refund claim is not maintainable. Refund proceedings in terms of Section 27 of the Customs Act, 1962 are only executionary and duty amounts cannot be redetermined in such proceedings. Assistant Commissioner has in order in original in para 12 has observed so. 4.7 In case of Mafatlal Industries Ltd [1997 (89) ELT 247 (SC)] a constitutional bench of nine judges held as follows: "70. Re : (II) :W....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g to the finality of any proceeding, be it a suit or any other proceeding. Where a duty has been collected under a particular order which has become final, the refund of that duty cannot be claimed unless the order (whether it is an order of assessment, adjudication or any other order under which the duty is paid) is set aside according to law. So long as that order stands, the duty cannot be recovered back nor can any claim for its refund be entertained..... ...... 99. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment. (iv) It is not open to any person to make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person. He cannot also claim that the decision of the Court/Tribunal in another person's case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y 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 its 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. 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 und....
X X X X Extracts X X X X
X X X X Extracts X X X X
....efund can be maintained." (emphasis supplied) 41. It is apparent from provisions of refund that it is more or less in the nature of execution proceedings. It is not open to the authority which processes the refund to make a fresh assessment on merits and to correct assessment on the basis of mistake or otherwise. 42. It was contended that no appeal lies against the order of self-assessment. The provisions of Section 128 deal with appeals to the Commissioner (Appeals). Any person aggrieved by any decision or order may appeal to the Commissioner (Appeals) within 60 days. There is a provision for condonation of delay for another 30 days. The provisions of Section 128 are extracted hereunder : "128. Appeals to [Commissioner (Appeals)]. - (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a [Principal Commissioner of Customs or Commissioner of Customs] may appeal to the [Commissioner (Appeals)] [within sixty days] from the date of the communication to him of such decision or order : [Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented....
X X X X Extracts X X X X
X X X X Extracts X X X X
....art from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India - 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industr....