TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 297
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....EOU, and he applied to the jurisdictional Development Commissioner for debonding of his unit to EPCG scheme, which was granted on 26.10.2007. On 12.12.2007 the jurisdictional Central Excise officer directed jurisdictional Range Superintendent to collect the duty on debonding of indigenous and imported capital goods from the appellant and on 19.12.2007 the jurisdictional Range Superintendent intimated regarding duty deposited by the appellant and confirmed that no dues were pending against the appellant. On 30.07.2009, the jurisdictional Central Excise officer directed the appellant to pay differential duty of Rs.83,49,549/- which he deposited, under protest, on 20.11.2009. An amount Rs.20,80,429/- was also deposited by the appellant, under protest, on 21.11.2009 towards interest on the amount deposited as differential duty, as above. Subsequently, appellant filed application for refund of Rs.1,04,40,139/-(Rs.83,49,549/- + Rs.20,90,590/-) stating that he had initially paid correct amount of duty and the differential duty demanded by the department was unwarranted. 2.2 The said claim was rejected by the adjudicating authority by the Order-in-Original dated 24.02.2011 stating as foll....
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.... that calculation of duty payable on the indigenous capital goods for conversion of 100% EOU to EPCG scheme was done on self assessment basis are contrary to the fact of the case. We, therefore, hold that impugned order is not sustainable and we set aside the same and remand the matter to learned Commissioner (Appeals) to decide the matter afresh by taking into consideration copies of said two letters referred to above. Appellant is directed to make available the copies of said two letters before the learned Commissioner (Appeals) for deciding the matter." 2.5 In the remand proceedings, Commissioner (Appeal) has by the impugned order rejected the appeal filed by the appellant. 2.6 Aggrieved appellant has filed this appeal. 3.1 We have heard Shri Nishant Mishra learned Counsel for the appellant and Shri Sarweshwar T. Khairnar learned Authorized Representative appearing for the revenue. 3.2 Learned Counsel for the appellant states that- Letter dated 30.07.2009 demanding differential duty without jurisidiction. Reliance in this regard is placed on Metal Forgings v. Union of India 2002 (146) ELT 241, Absent power of review conferred on Assistant Commissioner, he had no power ....
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....aid letter dated 29.11.2007, the Deputy Commissioner, Central Excise Division- Hapur, vide letter dated 12.12.2007 directed the Superintendent to get the amount re-calculated and verified duty amounting to Rs 1,12,97,512/- on imported and indigenous capital goods. The said Superintendent vide letter dated 19.12.2007 informed the Deputy Commissioner that the appellant had deposited the duty and that no dues were pending against the appellant. Thus, it is evident that the duty was not self-assessed by the appellant. 5.1 I further find that the department vide letter dated 30.07.2009 asked the appellant to pay an amount of Rs 83,49,549/- as differential duty, which he paid under protest, on 20.11.2009 and further interest amounting to Rs 20,80,429/- was also deposited by him, under protest, on 21.11.2009. The said letter dated 30.07.2009 was issued based on an audit observation/ objection and the appellant was asked to pay the said differential amounts as was said to have been pointed out by the audit. Though the appellant did not agree with the direction/assessment of duty contained in the letter dated 30.07.2009 of the department vide which he was asked to deposit differential dut....
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....n issued under Section SA of Central Excise Act, 1944 prescribing a similar concessional rate of duty in respect of indigenous capital goods supplied under EPCG Scheme Domestic procurement of capital goods by export oriented unit covered under Notification No. 22/2003-C.E., dated 31-3-2003 as amended - Appellant required to pay duty foregone when appellants availed Notification No. 22/2003-C.E. Para 6.18(d) of Foreign Trade Policy, 2004-09 and read with Para 5.4 of Handbook of Procedures. [paras6,7,9]" 4.3 Admittedly, in the present case appellant had claimed the refund of excess duty alongwith interest which as per their submission was paid by them on 21.11.2009, on the basis of communication dated 30.07.2009 received from the Department, not on the basis of self assessment made. Subsequently, on 18.11.2010 appellant filed a refund claim, claiming refund of duty and interest paid on 21.11.2009 asserting that the same was not payable by him. 4.4 The submission of the appellant that the letter dated 30.07.2009 was not an appellable order is contrary to the decisions rendered by the tribunal in the following cases: A. Gujarat Ambuja Cement Ltd. (Supra) following was held:- "3. O....
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....e appellant was to approach the Commissioner and the Commissioner was obliged to decide the matter on merit. The order of the Commissioner holding the appeal to be not maintainable cannot, therefore, be sustained. Accordingly, we set-aside the order of the Commissioner and remit the matter back to him to pass a fresh order on merit in accordance with law as early as possible preferably within two months of receipt of a copy of this order." C. Hindustan Rubber & General Indus., relevant para are as under:- " 4. In the case of Bhagwati Gases (supra), the Appellant in respect of their letter seeking permission for removal of used capital goods in respect of which Cenvat credit had been taken, on payment of duty at depreciated value, had received a communication from the Department that their request for applying depreciation on capital goods at the rates mentioned in earstwhile Rule 57-S(2) cannot be acceded to as there is no provision to provide depreciation under Cenvat Credit Rules, 2004 and the Appellant accordingly was advised to remove the capital goods only on payment an amounting equal to the Cenvat credit originally taken on the capital goods. M/s. Bhagwati Gases Ltd. file....
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....not? I find that against the adjudication order, the appellant approached to the adjudicating authority for the modification of the same. Therefore, the time consumed by the adjudicating authority is required to be deducted from the time of filing the appeal before the Commissioner (Appeals). If same is deducted, then the appeal filed before the Commissioner (Appeals) is within time. Therefore, I hold that the appeal filed by the appellant before Ld. Commissioner (Appeals) is within time." 4.5 The factum, payment of duty of interest either on the basis of the communication dated 30.07.2009 received from the Department and on the basis of self assessment is not in dispute. It is also not in dispute that the said assessment which has been made resulting in payment of this duty has never been challenged before any Appellate Authority and the said order of assessment has been set aside. In the case of ITC Ltd. [2019 (368) ELT 216 (SC)] Hon'ble Supreme Court has held as follows:- 38. No doubt about it that the expression which was earlier used in Section 27(1)(i) that "in pursuance of an order of assessment" has been deleted from the amended provision of Section 27 due to introductio....
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....ched 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 Collector that the assessee may file an appeal against the order before the Collector (Appeals) if so advised." (emphasis supplied) 40. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) - 2004 (172) E.L.T. 145 (S.C.) = (2005) 10 SCC 433, the Court considered unamended provision of Section 27 of the Customs Act and a similar submission was raised which was rejected by this Court observing that so long as the order of assessment stands, the duty would be payable as per that order of assessment. This Court has observed thus : "6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) case (2000) 6 SCC 650. Once an order of assessment is passed the duty would be payable as per that order. ....
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....icient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." 43. As the order of self-assessment is nonetheless an assessment order passed 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 re-assessment 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 as....
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............. 46. ................................ 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act." 4.5 In view of the above decision of Hon'ble Apex Court in the case of ITC Ltd. provisions of refund contained in the Section 27 of Customs Act and Section 11B of Central Excise Act are only executionary in nature and cannot result in setting aside or modifying the assessment orders (both on direction of the Department or self assessment). In these proceedings, if these assessment orders are to be modified then resort should have been taken to the appellate proceedings as provided in law. 4.6 The or....
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....ification No. 22/2003-C.E., dated 31-3-2003. They did not discharge their obligations as 100% EOU and applied for conversion from 100% EOU to EPCG Scheme. The Development Commissioner has allowed the conversion from EOU to the EPCG Scheme as a one time option in terms of para 6.18(d) of Foreign Trade Policy, 2004/2009 and read with para 5.4 of Handbook of Procedures. The appellants have paid the customs duty of 5% on all the capital goods including the capital goods procured indigenously on which the benefit of above mentioned Notification was availed. The question to be decided is whether the 5% customs duty on the capital goods is applicable to the indigenous capital goods or the appellants are required to pay the duty which was forgone when the appellants availed Notification No. 22/2003-C.E. 7. We find that the appellant had imported some of the capital goods and cleared the same without payment of duty under Notification No. 53/97-Cus. while other capital goods were procured indigenously and cleared without payment of duty under Notification 22/2003-C.E. DRI Ahmedabad booked a case against the appellants for clandestine removal of some of the imported machinery from the bond....