TaxTMI 
TaxTMI 
2025 (3) TMI 342
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....rt in the case of Priya Blue Industries Ltd. v. Commissioner [2004 (170) ELT A-308 (SC)], and accordingly the Ld. Commissioner(Appeals) has termed the order of the Ld.Deputy Commissioner, Customs Division, Paradeep as a reasoned one that deserves to be accepted. 2. M/s.Goa Carbon Ltd. are manufacturers and exporters of Calcined Petroleum Coke (CPC) classifiable under CTH 2713 1200. It is their contention that the department subjected them to a levy of Cess @ 10 per MT, Education Cess @ 2% and SHE Cess @ 1% on the CPC exported during the period April 2005 to January 2012. Shri S. Nagaraja, Ld.Advocate for the appellant has impressed that the impugned Cess was leviable under the Coal Mine (Conservation and Development) Act, 1974 read with Notification No.SO/727/(E) dated 25.06.2003 issued by the Ministry of Coal, Govt. of India and was not leviable on CPC which was exported, as the same was a manufactured petroleum product and not excavated from the coal mines. He contends that the said Cess was incorrectly levied by the assessing authorities and accordingly the appellant filed three refund applications covering exports made for the period April 2005 to August 2011, Oc....
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....is letter that the same was issued pursuant to certain discussions held with the representative of the appellant Shri R.Ravi, G.M. (Operations) and Shri N.R. Barik. The fact being that CPC manufactured and exported by the appellant, not being cooking or non-cooking coal did not attract duty of excise leviable on cooking and non-cooking coal @ Rs.10.00 per MT vide Notification No.SO-727/(E) dated 25.06.2003 issued by the Ministry of Coal, Govt. of India under the Coal Mine (Conservation and Development) Act, 1974. It is against this communication dated 30.03.2016 that the appellant approached the Commissioner(Appeals) who vide order under challenge dismissed the appeal filed, upholding the order/communication dated 30.03.2016 of the Deputy Commissioner, Customs Division, Paradeep. 5. The appellant has vehemently argued before us that they seek recourse to provisions of Section 149 of the Customs Act seeking amendment of the documents while as an alternative plea they also invite our attention to the provisions of Section 154 of the Customs Act. To appreciate the contentions of the appellant, it is imperative that the said two Sections are recorded in this order:- S....
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.... as warranted in law. The lower authorities have adverted to the ruling of the hon'ble apex court in the case of Priya Blue Industries Ltd. vs. Commissioner [2004 (170) ELT A 308 (S.C.)] to state that the assessment finalized was not challenged by filing an appeal and therefore the refund claims were not maintainable. The ld.advocate fairly concedes that the assessment of the Shipping Bills was however not challenged by way of appeal. 7. It is a fact that CPC, not being coal, raised in a mine nor manufactured from cooking coal and having been extracted from crude oil being a petroleum product is not leviable to Cess in terms of Section 6(1) of the Coal Mines (Conservation and Development) Act, 1974 read with Notification No.SO/727/(E) dated 25.06.2003. This contention has admittedly not been disputed by the lower authorities. We therefore find that the claim of the appellant for refund of duty has been rejected not on merits but on legal considerations and technicalities and provisions of law. It is now in this context that the scope and applicability of the provisions of Section 149 or 154 of the Customs (supra) resorted to by the appellant in appeal proceedings have to b....
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....of the provision of Section 149 and 154 of Central Excise Act, 1962 which has not been properly appreciated by the Adjudicating Authority. (vii) the ratio of the following case laws have been taken support to substantiate their above stand. (a) UOI vs. Hero Cycles Ltd. - 2010 (252) ELT A 103 (SC) (b) Commissioner of Customs, Guntur vs. Sameera Trading Company [2011 (264) ELT 578 (Tri.-Bang.)] (c) Oswal Agloimpex Pvt.Ltd.vs. Commissioner of Customs, Kandla [2012 (283) ELT 300 (Tri.-Ahmd.)] (d) Tata Iron & Steel Co. Ltd. vs. Commissioner of Customs (Port), Kol. [2006 (202) ELT 719 (Tri.-Kolkata)] (e) CCE vs. Muneer Enterprises vide Final Order Nos.1071 to 1075/2010 Dt.15.07.2010 (f) CC(Customs Promotion), Mumbai v. SAIL [2016-TIOL-735-CESTAT-MUM] (viii) that interest is payable in the refund amount as per Hon'ble Supreme Court's judgement in the case of Ranbaxy Laboratories Ltd. vs. UOI - 2011 (273) ELT 3 (SC); (ix) that there is no case of unjust enrichment in the subject dispute as Hon'ble Andhra Pradesh High Court's decision in the case of Asia Pacific Commodities Ltd. vs. ACC, Kakinada - 2012 (280) ELT 481 (A....
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....ise 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. The said order in detail was passed in review proceedings of the hon'ble apex court's own order in the said case of Priya Blue Industries Ltd. [2004 (170) E.L.T. A-308 (S.C.)], wherein appeal filed by the assessee against Tribunal's order was dismissed by the top court holding that any refund claim contrary to an assessment order (that was not challenged) was not maintainable. The apex court while setting aside the orders of this Tribunal, in the case of Commissioner of Customs, Central Excise & Service Tax (Appeals-II), Hyderabad v. Standard Consultants Ltd. [2022 (381) E....
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....ind from records that the Ld.Advocate has however, even before the lower authority taken the plea of recourse to the provisions of Section 149 and Section 154 of the Act ibid. The appellant's reliance to section 149 essentially flows in view of their representations made before the concerned authorities. 13. The law under Section 149 of the Act provides for amendment of documents. It categorically refers therein to section 30 and 41 of the Customs Act thereby implying reference to Bill of Entry and Shipping Bill i.e. import and export documents respectively. It may at this juncture be pointed out that even a recourse to such amendment provisions is not completely open ended and would be subject to stipulations as prescribed in law. 14. This Tribunal in the case of Commissioenr of Customs, Nhava Sheva v. Panasonic Battery India Co.Ltd. [2010 (256) E.L.T. 623 (Tri)], in a similar context pleading correction of an assessed Bill of Entry had the following to state : "5. As it appears from the records, the assessee had requested for a reassessment of the Bill of Entry. They submitted that there were clerical errors in the Bill of Entry which required to be cor....
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.... such as a tax or damages <assessment of the losses covered by insurance>. 2. Imposition of something, such as a tax or fine, according to an established rate; the tax or fine so imposed <assessment of a luxury tax> As against assessment, the term "appeal" refers to an entirely different concept in law and is defined as under: (Black's Law Dictionary, 7th edition) Appeal, n. A proceeding undertaken to have a decision reconsidered by bringing it to a higher authority; esp., the submission of a lower court's or agency's decision to a higher court for review and possible reversal <the case is on appeal>. Cf. CERTIORARI. From a plain reading of the aforesaid it is obviously clear that the three terms imply altogether different facets and aspects of working. 16. Indeed, however the appellant without seeking a revision to the assessment made and having got the original assessment set aside, filed three refund claims vide applications dated 29.08.2011, 18.11.2011 and 13.02.2012 claiming refund of cess @ Rs.18,34,276/- Rs.1,04,906/- and Rs.1,04,706/- in respect of relevant shipping bills and also wrote to the department. A copy of one such letter is....
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....ong declaration/assessment. As no document showing mistakes were filed before the proper officer of Customs, and the assessment undertaken (right or wrong) not overturned, we are of the view that the refund applications filed were appropriately rejected by the Revenue authorities. 20. We also note, from records that the orders of both the lower authorities are well reasoned and self-speaking, concisely amplifying the grounds on which basis, provisions of Section 149 and Section 154 of the Customs Act cannot be resorted to and made applicable to the issue herein. The appellant had themselves filed the shipping bills in the manner as aforestated incorporating the said cess. It is apparent that there is no arithmetical or clerical mistake in the assessments so done. The assessment to cess, is indeed a consequence of conscious action taken by both the sides. Irrespective of the fact of whether it being the right or wrong course of action, it cannot be considered as error arising from an accidental slip or omission in the decision or order of the assessing authority, hence the question of invoking the provisions of Section 154 for correction of clerical/arithmetical error canno....
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.... with the present matter - there being no case of refund claims filed and rejected on grounds of a non-challenge and reversal of the assessment so undertaken in the case. After a detailed analysis, the hon'ble Bombay High Court had categorically noted the point of law and observed as under : "22. Having noticed and analysed the relevant legal provisions, we may now turn to the decision of the Supreme Court in ITC Ltd. v. Commissioner of Central Excise, Kolkata-IV (supra). The question which arose before the Supreme Court was whether in the absence of any challenge to the order of assessment in appeal, any refund application against the assessed duty could be entertained. 22.1 From the question itself, it is clear that the issue before the Supreme Court was not invocation of the power of reassessment under Section 17(4) or amendment of documents under Section 149 or correction of clerical mistakes or errors in the order of self-assessment made under Section 17(4) by exercising power under Section 154 vis-a-vis challenging an order of assessment in appeal. The issue considered by the Supreme Court was whether in the absence of any challenge to an order of assessment....
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.... In contradistinction to the present matter, this was a case of claim of exemption, not claimed initially at the time of import and wherein the hon'ble courts exercised their "extra-ordinary jurisdiction" to grant relief to the party. Unfortunately, this Tribunal being a creation of the statute wields no "extraordinary jurisdiction", as vested in Constitutional Courts. Indeed the hon'ble High Court in the Hero Cycles Ltd. case, observed : "In so far as the claim for refund is concerned, that would only arise after the order is amended. The relief of refund claimed is not maintainable before the order of assessment is amended or modified as held by the Supreme Court in Priya Blue Industries ................." (iii) Steel Authority of India Ltd. vs. Commr. of Cus., Chennai [2016 (343) E.L.T. 602 (T)] In the said case, refund claims filed by the party were returned to them having been filed prematurely and directed to refile the same post re-assessment of the bills of entry. (iv) IOCL vs. Commissioner of C.Ex. & Cus., Vadodara-II [2015 (321) E.L.T. 292 (Tri-Ahmd.)] In the said case the question concerned was with reference to disposi....
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....nd Development) Act, 1974. Section 6 (1) providing levy of duty is reproduced below. JOTE imposition of excise duties. -(1) With effect from the appointed day, there shall be wied and collected on all coal raised and despatched, and on all coke manufactured d despatched, from the collieries in India such duty of excise, not exceeding rupees mper tonne, as may be fixed from time to time by the Central Government by tification, and different rates of duty may be levied on different grades or description coal or coke: DEPUTY COMMISSIONER, For Sca 29 AUG 2011 Registered Office: Dempo House. Campal, Panjim - Goa - 403 001, INDIA Tel. +91 (0832) 244 1300, 244 1457, 2224453 & 2223684 Fax: +91 (0832) 2427192, 2228588 2225098 E-mail: [email protected] Cuttack Office: Ground Floor, Plot No.360, Manavilas, Ice Factory Road, College Square, Cuttack 753 003 (Orissa) INDIA Tel: 0671-2648 555, 2649 344 Fax: 0671-2647 222 Document 2 rovided that the Central Government may, by general or special order, exempt any pecial grade or grades or description of Coal and Coke from the levy of such duty of Excise. 2) For the purposes of s....