M/s Paradeep Phosphates Ltd. Versus CGST, Excise & Customs, BBSR
Customs
2019 (3) TMI 453 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 4-3-2019
MA (EH)-77675-77687/18 & Cus. Appeal Nos.75850-75862/18 – MO/75133-75145/2019 & FO/75233-75245/2019
Customs
SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) And SHRI V. PADMANABHAN, MEMBER (TECHNICAL)
Shri S. C. Mohanty, Advocate for the Appellant (s)
Shri S. Guha, Asstt. Commr. (AR) for the Revenue
ORDER
Per Shri P. K. Choudhary:
The present Misc. Applications are for early hearing of the Cus. Appeal Nos.75850-75862/18, which have been filed against the Orders-in-Appeal Nos.47-59/CUS/CCP-GST/2017 dt.22.12.2017, passed by Commr. (Appeals) GST, Excise & Customs, Bhubaneswar.
2. After carefully considering the reasons as cited in the applications, the early hearing is allowed. With the concurrence of both sides, the appeals itself are taken up for decision.
3. The facts of the case in brief are that the appellants are e
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quantity rebate and price discount, which can only be ascertained at the end of the contract period. The above factual aspects are admitted by the authorities below, and therefore, those are not under dispute. Since the quantity rebate/price discount was not known at the time of import, the imported goods were cleared on payment of duty, on the basis value shown by the overseas supplier, in the bill of lading.
6. After completion of the contract period, and as a result of price negotiation between the parties, the quantity rebate/price discounts were determined. Thereafter, the appellant raised debit notes on the foreign suppliers, consequent upon which the differential amount was refunded to the appellant, through the authorised banking channel. This fact is also not under dispute. In all the thirteen cases, the bills of entry were presented, following the self assessment procedure in terms of Section 17 (1) of the customs Act, 1962 and customs duty was accordingly paid on the value
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he duty already paid by the appellant.
8. The Assistant Commissioner, relying upon the decision of the Hon'ble Supreme Court in the case of Flock (India) Pvt. Ltd. 2000 (120) E.L.T. 285 (S.C.) and Priya Blue Industries 2004 (172) E.L.T. 145 (S.C.), had held that since the appellant did not challenge the assessment of bill of entry by filling appeal against the same, Refund Applications are not maintainable. Aggrieved by the adjudication orders of the Assistant Commissioner, the appellant filed appeals before the commissioner (Appeals), which were rejected by the impugned common order, against which the present appeals are filed before this Hon'ble Tribunal.
9. On perusal of the impugned order, we find that the refund claim was rejected mainly on the ground that the assessment made by the appellant in the Bill of Entry reached its finality, which they have not challenged.
10. The lower authorities followed the decision of the Hon'ble Supreme Court in the case of Priya Blue Industries
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sidered at the time of assessment. Decision taken by the Department for non-consideration of the refund application filed after finalization of assessment and return of the same under the cover of letter dated 24-8-2011, assigning the reason of premature and not maintainable, in our considered opinion, would give rise to the cause of action for filing appeal before the ld. Commissioner (Appeals). Since, the decision of the adjudicating authority has been conveyed in the letter dated 24- 8-2011, it can be concluded that the said letter is only detriment to the interest of the respondent, against which the appeal was preferred before the Commissioner (Appeals). Appeal against the said letter having been filed within a period of sixty days from the date of its communication in our opinion, there is no delay in filing appeal before the ld. Commissioner (Appeals). Thus, we do not find any merits in the contention of Revenue that filing of appeal before the Commissioner (Appeals) is barred b
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ibid, in our view is in conformity with the statutory provisions.
7. The judgment of Hon'ble Supreme Court in the case of Priya Blue Industries Ltd. (supra) cited by Revenue in their grounds of appeal is distinguishable from the facts of the present case inasmuch as the duty in such case was paid by the importer in pursuance of an assessment order and the Hon'ble Supreme Court have ruled that so long as the order of assessment stands, the duty would be payable as per that order of assessment and refund claim is not an appeal proceeding. Contrary is the case in hand, wherein the respondent was not aggrieved by the order of assessment inasmuch as on the basis of information furnished by it in the Bill of Entry, the same was assessed by the Customs Department. Thus, there was no scope on the part of the respondent to file any appeal before the Commissioner (Appeals) against the assessed Bill of Entry. Further, the alternative provided in Section 27 ibid, i.e., 'borne by him' was not the
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ich allows him payment of concessional rate of duty merely after filing a Bill of Entry. In fact, such a case is the present case in which there is no assessment order for being challenged in the appeal which is passed under Section 27(1)(i) of the Act because there is no contest or lis and hence no adversarial assessment order.
The Tribunal has referred to the cases of 5. CCE, Kanpur v. Flock (India) Pvt. Ltd. [2000 (120) E.L.T. 285] and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive), 2004 (172) E.L.T. 145 (S.C.). In both these cases, referred to by the Tribunal there was an assessment order which was passed and consequently it was held that where an adjudicating authority passed an order which is appealable and the party did not choose to exercise the statutory right of 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 adjudicating authority had
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