Case Law Details
Commissioner of Customs Vs Vibhuthigadda Mines Pvt Ltd. (CESTAT Hyderabad)
In this case before the Customs Excise and Service Tax Appellate Tribunal Hyderabad, the Revenue challenged an order granting refund of excess export duty paid by the respondent on export of iron ore fines. Initially, the respondent declared the FOB value and paid export duty, but the Department enhanced the value based on contemporaneous exports, leading to payment of additional duty under protest. The respondent later filed a refund claim relying on a CBEC Circular clarifying that FOB value should be treated as cum-duty price.
The refund claim was initially rejected by the adjudicating authority on the ground that the assessment order was not challenged and that the circular applied only to pending assessments. However, the Commissioner (Appeals) allowed the refund, and this decision was upheld by the Tribunal. The Department’s further appeal to the Supreme Court was also dismissed, thereby affirming the refund entitlement.
Subsequently, the Department issued a show cause notice and undertook reassessment, ultimately acknowledging that excess duty had been paid and granting refund. Interest was also awarded later on appeal. The respondent contended that the Department had accepted and implemented the earlier orders, and therefore the issue had attained finality.
The Tribunal examined whether the Department could reopen the matter after exhausting appellate remedies up to the Supreme Court and implementing the orders. It observed that once an issue has been adjudicated and has attained finality, it cannot be reopened through subsequent proceedings. It relied on judicial precedents holding that finalised assessments cannot be revisited in refund proceedings and that the Revenue cannot adopt contradictory positions after accepting earlier decisions.
The Tribunal noted that the Department had implemented the orders granting refund and interest, thereby accepting their validity. It held that reopening the same issue amounted to taking a contrary stand, which is impermissible. It further observed that the transaction value was supported by relevant documents and there was no allegation of suppression or extra consideration. The applicable circular had been correctly applied.
Accordingly, the Tribunal held that the Department was estopped from reopening the issue and that the appeal lacked merit. The appeal was dismissed as not maintainable.
FULL TEXT OF THE CESTAT HYDERABAD ORDER
The present appeal has been filed by the Department against the Order-in-Appeal No. 6/2013 (G) CUS dated 27.08.2013 passed by the Commissioner of Customs (Appeals), Guntur (impugned order).
2. The fact, in brief, is that the respondent M/s Vibhutigudda Mines (P) Ltd., exported iron ore fines under Shipping Bill No.44/2008-09 dated 15.07.2008 declaring FOB value at USD 120 PDMT. Accordingly, the respondent paid export duty @ 15%. The Department however sought enhancement of value based on contemporaneous exports to USD @ 136 PDMT. The respondent, under protest deposited additional duty and subsequently filed refund claim relying upon CBEC Circular No. 18/2008-CUS dated 10.11.2008 which clarified that FOB price is to be treated as Cum-duty price.
3. The Assistant Commissioner vide Order-in-Original No. 35/2009 R dated 16.03.2009 rejected the refund claim on the ground that the assessment order had not been challenged and that the CBEC Circular No. 18/2008-CUS dated 10.11.2008 was applicable only to the pending assessments. The respondent challenged the above order before Commissioner of Customs (Appeals), Guntur. The Commissioner (Appeals) allowed the appeal and passed O-I-A No. 17/2009(G) Cus dated 18.09.2009 and directed to refund the excess customs duty paid.
4. Department had filed an appeal against the OIA dated 18.09.2009 before CESTAT and CESTAT vide common Final Order No. A/1071-1075/2010 dated 15.07.2010 rejected the appeal filed by the Department. Thereafter, the Department had filed an appeal before the Hon’ble Supreme Court, and Hon’ble Supreme Court pleased to dismissed the civil appeal on 24.01.2011 as reported in Commissioner Vs Muneer Enterprises [2015 (319) ELT A226 (SC)].
5. The Assistant Commissioner, Nellore, once again issued show cause notice C.No. VIII/20/16/2011-R dated 20.01.2012 proposing finalization of assessment and finalized the assessments vide OIO NO. 01/2012 dated 17.04.2012 and held that the respondent had paid export duty in excess to the tune of Rs. 12,12,259/-. Respondent filed an appeal before the Commissioner of Customs (Appeals) but based on OIA No. 6/2013(G) CUS dated 27.08.2013 (impugned order) determined the export duty payable and paid and held that the appellant was entitled to refund of excess customs duty.
6. The Department has challenged the above OIA by present appeal.
7. Learned Counsel for the respondent submits that the Assistant Commissioner has subsequently passed OIO No. 03/2015(Cus)(R) dated 14.07.2015 and recorded that he was implementing OIA No. 6/2013(G)(Cus) dated 27.08.2013, reassessed shipping bill and sanctioned refund of excess Export duty but did not sanctioned payment of interest for the delay. Thereafter, respondent filed appeal before Commissioner (Appeals) and the Commissioner (Appeals) allowed the appeal and directed to pay interest also.
8. Learned Counsel for the respondent further submits that the Customs Department has accepted the adjudication order for re-assessment of Shipping Bill and refund of excess duty paid. Consequently, the said order has attained finality.
9. Learned Counsel for respondent also submits that if an order has not been appealed against, it attained finality and the Department cannot take contra stand. Reliance has been placed on the following decisions:
a. Marsons Fan Industries Vs CCE [2008 (225) ELT 334 (SC)]
b. CCE Vs Novapan Industries Ltd., [2007 (209) ELT 161 (SC)]
c. Boving Fouress Vs CCE [2006 (202) ELT 389 (SC)]
d. CCE Vs Amar Bitumen and Allied Products Pvt Ltd., [2006 (202) ELT 213 (SC)]
e. Nokia India Sales Pvt Ltd., Vs CC, New Delhi [2024 (25) Centax 293 (Tri-Del)]
10. Heard both the sides and perused the records.
11. In view of the above facts, the factual position is that earlier order of Commissioner (Appeals) was upheld by this Tribunal vide Final Order No. A/1071-1075/2010 dated 15.07.2010. The Department filed an appeal before Hon’ble Supreme Court which was also dismissed as reported in Commissioner Vs Muneer Enterprises, supra.
12. The core issue is, whether the Department, after exhausting Appellate remedies up to the Hon’ble Supreme Court and implementing the order, can once again re-open the same issue through present proceedings. The dismissal of Civil Appeal by Hon’ble Supreme Court leads finality of issues. Thereafter, reassessment was carried out, the refund was sanctioned. Interest was also granted and both the orders were accepted and implemented by the Department.
13. The Hon’ble Supreme Court in the case of Priya Blue Industries Ltd., Vs Commissioner [2004 (172) ELT 145 (SC)], it was held that “once an assessment order has attained finality, refund proceedings cannot be used as a means to reopen or question the assessment”. The Tribunal, Delhi in the case of Nokia India Sales Pvt Ltd., supra, has reiterated that once an order is accepted and implemented, it attains finality and cannot be reopened.
14. Having accepted and again opened the order, the Department is estopped from taking a contrary stand. Hon’ble Supreme Court in the case of Novapen Industries Ltd., supra and Marsons Fan Industries, supra held that the Revenue cannot appropriate and reprobate.
15. In the present appeal Department seeks to challenge an order which has already been adjudicated and attained finality upto Hon’ble Supreme Court and it is also important that it has been implemented by the Department itself.
16. Without prejudice to above, the transaction value is supported by BRC and contractual documents. There is no any allegation of extra consideration or suppression. It is also important that CBEC Circular No. 18.2008-Cus has been correctly applied. Thus, even independently, the impugned order is legally impeccable.
17. Therefore, the appeal filed by the Department is devoid of merit and is not legally maintainable. Therefore, liable to be dismissed.
18. Appeal dismissed.
(Pronounced in the open court on 09.04.2026
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