TaxTMI 
TaxTMI 
2024 (7) TMI 202
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....Rs. 55,91,777/- iii ) 16.09.2009 - Rs.35,49,386/-; and iv ) 05.03.2010 - Rs.33,15,827/- 3. The Assistant Commissioner rejected the claims on the ground that the claims were finalised by the Superintendent, Vadiner, who is not the proper officer and further the appellant failed to produce the document evidencing that they have not passed on the incidence of duty to its buyers. On challenge, the Commissioner (Appeals), Air Cargo Export, NCH, New Delhi, vide order dated 31.03.2011 set aside the assessment order and restored the refund claims to be considered afresh by the Assistant/Deputy Commissioner (Bond). The Assistant Commissioner vide order dated 02.04.2013 passed the final re-assessment order under Section 18 of the Customs Act, 1962, which is reproduced here :- Final Re-assessment Order (Under Section 18 of the Customs Act, 1962) (M/s. Indian Oil Corporation Limited, Panipat Refinery has filed request for re-assessment of the under-mentioned Ex-Bills of Entry under directions of Hon'ble Commissioner of Customs (Appeals), NCH, New Delhi vide their Order-in-Appeal No.CC(A)/CUS/EXP/93-99/2011 dated 31.03.2011) Sl. No. Ex-Bond B/E No. Ex-B....
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....ally assessed by order dated 02.04.2013 and rejected the balance amount of Rs.77,36,325/-. The observations of the Deputy Commissioner relating to the claim of Rs.77,36,325/- are quoted below:- "17. The Deputy Commissioner (Bond), NCH, New Delhi has finalized the duty refundable to Rs.6,76,11,716/- out of which refund of Rs.5,50,37,628/- has already been claimed by the party after finalization of provisional assessment, vide order-in-original No. R-13/2008 dated 31.03.2008, R-25/2008 dated 30.06.2008, R-26/2008 dated 11.07.2008, R-28/2008 dated 28.07.2008, and sanctioned by the then Assistant Commissioner of Refund, ACE, NCH, New Delhi. Hence, the amount of admissible amount of refund claim comes to Rs. 1,25,74,088/- whereas on dt. 10.5.2013, the party has filed the refund claim amounting to Rs.2,03,10,413/- instead of Rs.1,25,74,088/-. During scrutiny of the refund claim of Rs. 2,03,10,413/-, it has been found that in the final assessment order dt.02.04.2013 recommended the refund claim which is to be sanctioned to the claimant amounting to Rs.1,25,74,088/-. It has also been found that refundable amount against Bill of entry No. F-42 dt.9.10.2002 has been mentioned in ord....
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.... behalf of the appellant is that in case of provisional assessment under Section 18, provisions of Section 27 of the Act are not applicable and, therefore, the refund sanctioning authority is required to suo-moto grant refund without insisting on filing of refund application or taking into account, if there is any delay in filing the said application. Thus, there is no requirement to follow the procedure as prescribed in Section 27 of the Act. The learned Consultant on behalf of the appellant submitted that it was not proper on behalf of the sanctioning authority to have insisted that the amendment order dated 31.08.2009 should have been attached with the refund application dated 21.07.2009. According to him, the relevant amendment dated 31.08.2009 issued by the Assessing Authority was submitted to the refund sanctioning authority on 29.12.2009 along with the written submissions. 7. The learned Authorised Representative reiterated the findings of the Authorities below and submitted that the order dated 16.09.2013 had rightly allowed the amount of refund as finally re-assessed by the order dated 02.04.2013 passed by the Assistant Commissioner and rejected the amount of Rs.77,36,3....
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....endent refund claim is filed after the final decision under Rule 9-B(5) re- agitating the issues already decided under Rule 9-B -assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11-B. It follows logically that position would be the same in the converse situation." The later part of the observations of the Apex Court that if an independent refund claim is filed after the final decision under Rule 9B(5) re-agitating the issues already decided under Rule 9B assuming that such a refund claim lies and is allowed, the same would be governed by Section 11 B, squarely applies in the given situation. 10. We may also take note of the decision of the Delhi High Court in the appellant's own case Commissioner of Customs Vs. Indian Oil Corporation, which accepted the distinction drawn by the Gujarat High Court in the case of Hindalco Industries Ltd [2008 (231) ELT 36 (Guj)] by citing two situations as under:- "9.1 Referring to Explanation II to Section 27 of the Act it was submitted that the same would apply to a case where after the final assessment and the adjustment, if still the assessee is not satisfied with the adjustment and....
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....plication under Section 27 and accordingly sub-section (2) to Section 27 would not apply. It is in this situation that the legislature has intervened and has now inserted sub-sections (3), (4) and (5) to Section 18 w.e.f. 13-7- 2006. These insertions obviously are not applicable to the case in hand as they do not have retrospective effect. It was so held in TVS Suzuki Ltd. (supra) when similar amendments were-made in Rule 9B of the Rules passed under the Central Excise Act w.e.f. 25-6-1999. However, in 1999, the legislature did not make corresponding amendment in Section 18 of the Customs Act. These amendments were made w.e.f. 13-7-2006." 11. The instant case is squarely covered by the second situation given in the illustrations by the Gujarat High Court in Hindalco Industries (supra), as the refund has been sanctioned in terms of the final re-assessment order but according to the appellant the refund payable is higher. In respect of B/E No.F-42 though the amount claimed by the appellant is Rs.76,36,325/-, however, the amount assessed by the Assessing Officer is Rs.64,329/-, so in order to claim any amount beyond what has been assessed, the appellant will have to comply with the....