Final Order Nos. A/207-208/2011-WZB/C-I(CSTB), arising from in Appeal Nos. C/564-565/2003. Case: Ferromatic Milacron India Ltd. Vs Commissioner of Customs (I), Mumbai. CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)
| Case Number | Final Order Nos. A/207-208/2011-WZB/C-I(CSTB), arising from in Appeal Nos. C/564-565/2003 |
| Counsel | For Appellant: Anil Balani, Adv. and For Respondents: Manish Mohan, Authorised Representative (SDR) |
| Judges | P.G. Chacko (J) and Sahab Singh (T), Members |
| Issue | Customs Act - Sections 17, 17(5), 128 |
| Citation | 2011 (24) STR 694 (Tri - Mumbai) |
| Judgement Date | April 19, 2011 |
| Court | CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal) |
Order:
P.G. Chacko, Member (J), (West Zonal Bench at Mumbai)
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These appeals filed by the Assessee against a common order of the Commissioner (Appeals) seek refund of certain excess amounts of duty paid by them, without the bar of unjust enrichment. The Appellant had imported second-hand machinery. The declared value was not accepted by the assessing authority, which enhanced the value of the goods for the purpose of levy of duty. The duty assessed was paid by the Assessee under protest. Subsequently, as many refund claims as there were bills of entry were filed by the party, which were rejected by the original authority. Aggrieved, appeals were preferred to the Commissioner (Appeals) but without any success. Hence the present appeals.
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The learned Counsel for the Appellant submits that the refund claims were rejected on the ground that the assessments were not challenged. It is submitted that, considering the fact that the duty was paid under protest, the assessing authority ought to have passed speaking orders under Section 17 of the Customs Act. Had speaking orders been passed by the assessing authority, the Appellant would have challenged the same and, in the event of success, could have claimed refund of the excess duty. The learned Counsel further submits that the very factum of duty having been paid under protest would amount to a challenge to the assessments. In this context, the Counsel refers to Sub-section (5) of Section 17 of the Customs Act, which requires the assessing authority to pass an order within a period of 15 days. It is submitted that, though this Sub-section was not in existence during the material period, it was the practice of the Customs authorities during those days also to pass speaking orders of assessment. It is submitted that the Revenue has no case that excess duty was not paid by the Appellant or that such excess duty was not refundable in principle. In this scenario, according to the learned Counsel, this Tribunal should direct the assessing authority to pass speaking orders of assessment.
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The learned SDR, opposing the above submissions of the learned Counsel, submits that the substantive issue in this appeal is squarely covered in favour of the Revenue by the Tribunal's Larger Bench decision in the case of CC, Nhava Sheva v. Eurotex Indus. and Exports Ltd. 2007 (216) ELT 137 (Tri.-LB), wherein it was held that a refund claim was not maintainable unless the assessment order in pursuance of which the...
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