Balaji Plywood vs Commissioner Of Customs, Mumbai I

(Arising out Order-in-Appeal No. 567/2004-MCH dated 30.09.2004 passed by the Commissioner of Customs (Appeals), Mumbai)

For approval and signature: Honble Mr. S.S. Garg, Member (Judicial) Honble Mr. Raju, Member (Technical)

1. Whether Press Reporters may be allowed to see No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy Yes of the Order?

4. Whether Order is to be circulated to the Departmental Yes authorities?

Balaji Plywood Appellant

Vs.

Commissioner of Customs, Mumbai I Respondent

Appearance:

None for the appellant Shri Chatru Singh, AC (AR) for the respondent

CORAM:

Honble Mr. S.S. Garg, Member (Judicial) Honble Mr. Raju, Member (Technical)

Date of hearing : 27-10-2015 Date of decision : 27-10-2015

O R D E R No:..

Per: S.S. Garg

This appeal is directed against Order-in-Appeal No. 567/2004-MCH dated 30.09.2004 vide which the Commissioner (Appeals) upheld the order of Adjudicating Authority and dismissed the appeal of the appellant.

2. The brief facts of the case are that the appellant imported a self closing drawer slides through Mumbai port and filed bill of entry no. 221903 dated 12.11.2001 and declared the value as per the purchase order, invoice and letter of credit. The value declared is the transaction value. At the time of assessment the assessing officer insisted on enhancing the declared value. As the appellant wanted the goods urgently he paid the duty on enhanced value and cleared the goods. Thereafter no assessment was issued and appellant filed an application for refund of excise duty paid under Section 27 of the Customs Act, 1962 with the Deputy Commissioner along with certificate issued by the Chartered Accountant to the fact that duty paid on the enhanced value was not included in the sale price. The Dy. Commissioner rejected the application for refund on the ground that the appellant did not object to the increase and further he did not produce evidence to prove that excess duty paid was not passed on to others. Thereafter the appellant filed appeal before the Commissioner, who vide order dated 30.09.2004 upheld the order of the Dy. Commissioner and rejected the appeal. Now the appellant is before us by way of this appeal.

3. The appellant has submitted in his written submission that the ld. Commissioner dismissed the appeal without considering the evidence furnished by the appellant. The ld. Commissioner in his order has observed as under:-

It is settled judicial position that Chartered Accountant certificate alone is not enough to rebut the presumption against passing of the duty burden unless supported by any other evidence whereas it is fact that the sales invoice are the best evidence to rebut such presumption and the appellants have failed to produce the same.

4. The appellant has submitted that they did produce the sale invoice along with appeal before the Commissioner which the Commissioner did not take into consideration while deciding the appeal. The appellant has filed the sales invoice along with this appeal. The appellant has also attached the certificate of Chartered Accountant to show that the incidence of duty has not been claimed in the sales invoice.

5. On the other hand, ld. AR supported the finding of the Commissioner. He further submits that the application for refund is not maintainable without challenging the assessment order as held by the Apex Court in the case of Priya Blue Industries ltd. 2004 (172) ELT 145 (SC) and in the case of CCE vs. Flock (India) Pvt. Ltd. 2000 (120) ELT 285 (SC).

6. We have heard the ld. AR and perused the record and the written submission of the appellant.

7. In our view the decision of the Apex Court in the case of Priya Blue Industries (supra) as well as Flock (India) Pvt. Ltd. (supra) settles the issue beyond doubt. The Hon'ble Supreme Court has held that once the order of assessment is passed and unless that order is reviewed under Section 128 or modified in appeal that order stands and officer considering the refund claim stand in appeal over the assessment made by the competent officers. The Hon'ble Supreme Court in the case of Priya Blue Industries (supra) in para 6 has observed as under:-

Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order.

8. As far as the second submission of the appellant relating to unjust enrichment becomes irrelevant since we are of the considered opinion that in the wake of the Apex Court decision cited above, refund claim is not maintainable unless assessment order is reviewed or modified in appeal. Since in this case the appellant has not challenged the assessment order, consequently refund claim is not maintainable. In view of these facts and circumstances, and the judgment cited above, we find there is no merit in the appeal filed by the appellant and consequently, we dismiss the same.

(Operative part pronounced in Court)

(Raju) Member (Technical) (S.S. Garg) Member (Judicial)

//SR

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C-1157-04