Commissioner of Customs Vs Tamil Nadu Generation (CESTAT Chennai)
CESTAT Chennai held that any refund claim is not maintainable in absence of any challenge to the assessment order as the refund authority cannot assume the role of an adjudicating / assessing authority.
Facts- The assessee filed seven refund claims for refund of Customs Duty paid in respect of import of ‘non-coking coal in bulk’ imported under seven Bills-of-Entry. According to the assessee, the refund of Customs Duty paid for the above import arose since the assessable value was worked out by adding 2% of CIF value on high seal sales load at the time of assessment of import of goods, which the assessee wanted to be re-assessed by adding Rs.33/- per M.T., apparently paid to the supplier viz. M/s. MMTC Ltd. as trade margin, to the assessable value.
Notably, all the refund claims were rejected. However, the appeal preferred by the assessee was allowed. Accordingly, being aggrieved, the present appeal is filed by the revenue.
Conclusion- It is the settled position of law that the right to appeal is available to an assessee as well as the Department, even against self-assessment; until and unless the “self-assessment” is modified and the duty thereafter is re-determined, no application would lie for refund of any duty from such self-assessment since the refund authority cannot assume the role of an adjudicating / assessing authority. This is because the scope of refund is limited as against the scope of adjudication proceedings and hence, the authority considering any refund application cannot revisit the adjudication proceedings for which he has no jurisdiction.
FULL TEXT OF THE CESTAT CHENNAI ORDER
Brief undisputed facts that emerge from perusal of the orders of lower authorities are that the assessee filed seven refund claims for refund of Customs Duty paid in respect of import of ‘non-coking coal in bulk’ imported under seven Bills-of-Entry. According to the assessee, the refund of Customs Duty paid for the above import arose since the assessable value was worked out by adding 2% of CIF value on high seal sales load at the time of assessment of import of goods, which the assessee wanted to be re-assessed by adding Rs.33/- per M.T., apparently paid to the supplier viz. M/s. MMTC Ltd. as trade margin, to the assessable value.
2. It appears from the record that seven Show Cause Notices came to be issued, but which are not placed on record or along with the appeal memorandum, proposing inter alia to reject the refund claims of Rs.45,45,970/-. It also appears that the respondent herein filed a common reply justifying its claim for refund, which was thereafter considered in adjudication.
3. It appears that the adjudicating authority, entertaining a belief that the claims of the assessee were not in order and that the assessee did not produce any documentary evidence to prove that their claim was not hit by unjust enrichment as enshrined under proviso to Section 27(2) of the Customs Act, 1962, after considering the reply filed by the assessee, vide Order-in-Original dated 31.12.2012, rejected all the assessee’s claims, as proposed in the Show Cause Notices.
4.1 It appears that the assessee preferred an appeal before the first appellate authority against the rejection of its refund claims and the first appellate authority, vide impugned Order-in-Appeal No. 28/2013 dated 30.04.2013 has allowed the appeal of the assessee-appellant before him, thereby setting aside the rejection order of the adjudicating authority.
4.2 The learned first appellate authority has, in the impugned Order-in-Appeal, observed that: –
