M/S. Whirlpool Of India Ltd vs C.C.E., Delhi-Iv

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether Lordships wish to see the fair copy of the order? Seen 4. Whether order is to be circulated to the Department Authorities? Yes

Appeal No.C/610/2009-CU[DB]

[Arising out of Order-in-Appeal No.19/CUS/APPL/DLH-IV/2009, dated 18.08.2009 passed by the C.C.E.(Appeals), Delhi-I]

M/s. Whirlpool of India Ltd. Appellant

Vs.

C.C.E., Delhi-IV Respondent

Appearance

Mr.Ashish Batra, Advocate - for the appellant

Ms. Suchitra Sharma, DR - for the respondent

CORAM: Honble Justice G. Raghuram, President

Honble Mr. R.K. Singh, Member (Technical)

Final Order No.53108/2015, dated 23.09.2015

Per Mr. R.K. Singh :

The appeal is filed against Order-in-Appeal dated 18.08.2009 which upheld the Order-in-Original dated 27.05.2008 in terms of which the Assistant Commissioner of Customs rejecting the refund claims of the appellant passed the following order:-

Please refer to your nine refund claims filed in respect of following Bills of Entry:-

Sl.

No. B/E No. & Date Amount (Rs.) Date of

Receipt 1 109639 dtd 25.2.08 1,15,527.00 1.5.2008 2 109635 dtd 25.2.08 1,15,527.00 1.5.2008 3 109638 dtd 25.2.08 1,15,527.00 1.5.2008 4 109641 dtd 25.2.08 1,15,527.00 1.5.2008 5 109823 dtd 7.3.08 1,15,527.00 1.5.2008 6 109640 dtd 25.2.08 1,15,527.00 1.5.2008 7 109637 dtd 25.2.08 1,15,527.00 1.5.2008 8 109642 dtd 25.2.08 1,15,527.00 1.5.2008 9 109636 dtd 25.2.08 1,15,527.00 1.5.2008

On perusal of above said Bills of Entry, it is found that all the Bills of Entry were assessed on Final basis. As per the Apex Courts Order in the case of Commissioner of Central Excise Vs. Flock India 2000 (120) ELT 285 SC, it was held that once the Bill of Entry is finally assessed it reaches its eventuality and becomes an appealable order. Hence the refund claims in respect of above said Bills of Entry are not maintainable.

2. The appellant has contended that it had paid excess duty in as much as the goods (namely Isocyanate Millionate) assessed under CTH 2929 1090 were unconditionally exempt from duty in excess of 7.5% ad valorem under Notification No. 21/2002-CUS, dated 01.03.2002 as amended which it did not claim due to oversight and therefore in terms of the judgement of Delhi High Court in the case of Aman Medical Products Ltd. Vs. CC, Delhi [2010 (250) ELT 30 (Delhi)] it was entitled to claim the fund without challenging the assessment.

3. Ld. Departmental Representative referred to the judgement of Supreme Court in the case of Commissioner of Central Excise Vs. Flock India [2000 (120) ELT 285 SC] to say that refund cannot be claimed unless the assessment was challenged.

4. We have considered the contentions of both sides. While the Departmental Representative referred to the judgement of Commissioner of Central Excise Vs. Flock India (supra) the appellant has cited the judgement of Delhi High Court in the case of Aman Medical Products Ltd. Vs. CC, Delhi (supra). We find that in the present case, the classification or the valuation of the goods is not in question. Thus the judgement of Commissioner of Central Excise Vs. Flock India (supra) is not really applicable because in that case the Assessing Officer had passed an adjudication order determining the classification of goods. In other words, in that case the classification was contested by the assessee. In the present case the classification or valuation is not being contested by the assessee. In the present case, it was just the case that due to ignorance/oversight, the appellant failed to claim the benefit of a notification which exempts the impugned goods from payment of duty in excess of 7.5% ad valorem; Delhi High Court in the case of Aman Medical Products Ltd. Vs. CC, Delhi (supra) after taking note of the Supreme Court judgement in the case of Commissioner of Central Excise Vs. Flock India (supra) in effect held that when higher duties paid by inadvertence without taking benefit of a notification due to ignorance, refund claim can be filed subsequently without challenging the assessment order. In the light of the law laid down by the Delhi High Court in the case of Aman Medical Products Ltd. Vs. CC, Delhi (supra) the ratio of which is squarely applicable to the present case, we allow the appeal by way of remanding the case to the primary adjudicating authority with the following direction:-

(i) The refund claim should be considered on merit in the light of the judgement of Delhi High Court in the case of Aman Medical Products Ltd. Vs. CC, Delhi (supra)

(ii) If the refund is found to be admissible, it should be granted to the appellant only if the appellant discharges the burden of establishing that it had not passed on the burden to any person.

5. The appeal stands disposed of on the above terms.

(Justice G. Raghuram)

President

(R.K. Singh)

Member (Technical)

SSK

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