Shriram Institute For Industrial ... vs Commissioner Of Customs (Ii) Asc, ...
- CitationAppeal No. C/436/2004-Mum
Ratio decidendi
The rule this decision rests on
A refund claim in respect of duty paid on assessment cannot be sustained unless the assessment order itself has been challenged, that is, got modified or reviewed by the competent authority; the refund claim stands or falls with the assessment. An appellate authority under the Customs Act has no power to condone a delay in filing an appeal beyond the statutory limitation period prescribed in the Act, and an appeal filed out of time is liable to be rejected on that ground alone.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Appeal No.23/2004 AP Misc.(Airports) dated 19.2.2004. passed by the Commissioner of Customs (Appeals) Airport, Mumbai)
For approval and signature: Honble Mr. P.S.Pruthi, Member (Technical)
Honble Mr. Ramesh Nair, Member (Judicial)
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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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
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Shriram Institute for Industrial Research :
Appellant
VS
Commissioner of Customs (II) ASC, Mumbai :
Respondent
Appearance
None for Appellant
Shri M.K. Mall, Assistant Commissioner (A.R) for respondent
CORAM:
Mr. P.S.Pruthi, Member (Technical) Mr. Ramesh Nair, Member (Judicial)
Date of hearing : 24/09/2015 Date of decision : 24/09/2015
ORDER NO.
Per : P.S. Pruthi
Appellant is in appeal against the Order-in-Appeal dt. 19.2.2004.
2. The appellant had imported consignment of Photometer which was cleared on merit basis and duty of Rs.25,400/- as assessed by Customs was paid by them on 30.5.2003 in respect of the Bill of Entry filed on 30.4.2003. Subsequently, they filed a refund claim. The adjudicating authority rejected the refund claim on the ground that they had not filed the same in the proper format and had not submitted evidence of having borne the incidence of duty and not passing on the same. The other ground for rejecting the refund claim was that the assessment order was not got modified or reviewed by the proper authority. In appeal the Commissioner (Appeals) rejected the appeal on the ground that it was filed beyond the statutory limit prescribed in the Customs Act.
3. We have considered the facts of the case. We find that it is a very old case pertaining to the year 2003. It is correctly stated by the Ld. AR that refund is not sustainable without challenge to the assessment order as held by the Honble Apex Court in the case of Collector of Central Excise, Kanpur Vs. Flock (India) Pvt. Ltd. 2000 (120) E.L.T. 285 (S.C.). We also find that the Commissioner (Appeals) has no power to condone the delay in filing the appeal beyond the statutory limit prescribed in the Act. For this reason also the appeal before us is liable to be rejected.
4. Appeal dismissed.
(Pronounced & Dictated in court)
(Ramesh Nair) Member (Judicial)
(P.S.Pruthi) Member (Technical)
SM.
3
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