By TIOL News Service

MUMBAI, NOV 25, 2014: THE Commissioner (A) held that the assessee was eligible for the exemption under Notification No. 77/2008-Cus dated 13/06/2008 as the same is effective from the midnight of 13/06/2008 and the Let Export Order was given on 13/06/2008; refund is admissible

Revenue is aggrieved and, therefore, is before the CESTAT.

The ground urged is that the respondent had not challenged the assessment order and, therefore, in view of the apex Court's judgment in the case of Priya Blue Industries Ltd. - 2004-TIOL-78-SC-CUS, the refund claim was not maintainable.

The respondent submitted that there were 8 refund claims amounting to Rs.3,14,21,889/-. In respect of six refund claims, where the 'Let Export Order' was passed on 18/06/2008, refund was sanctioned by the Assistant Commissioner of Customs and only in respect of two refund claims, pertaining to shipping bills 5477846 and 5477736 filed on 06/08/2008 and 05/06/2008, wherein the 'Let Export Order' was given on 13/06/2008, refund was rejected by the Assistant Commissioner but the same was allowed in appeal by Commissioner (A) holding as mentioned; since the same is correct exposition of law, the order needs to be upheld.

The Bench observed -

"5. … In respect of six refund claims on which also the respondent has discharged export duty liability, Revenue had suomotu sanctioned refund without taking the ground that the original assessment had not been challenged. The only ground taken in the Assistant Commissioner's order for refusing the refund in respect of two shipping bills was Notification 77/2008 dated 13/06/2008 is effective from the midnight of 13/06/2008. It is a settled position in law that a Notification issued on a particular date takes effect from the said date unless otherwise specified in the said Notification. In the present case, there is no other date specified in the Notification as to the date of its effect. Therefore, Notification 77/2008 dated 13/06/2008 is effective from 00 hours of 13/06/2008. Since ‘Let Export Order' has been given on 13/06/2008, the rate of duty relevant for assessment would be the rate prevalent on 13/06/2008. Consequently, the respondent would be eligible for the benefit of the said Notification. In these circumstances, we do not find any infirmity in the order passed by the lower appellate authority."

In the matter of the six refund claims which were sanctioned, the CESTAT noted that the Revenue cannot, at the same time, take the view that in respect of six refund claims which they had sanctioned, the assessment order need not be challenged and the party would be entitled for the refund whereas in respect of two shipping bills only, the question of non-challenging of assessment order arises. Moreover, this was also not the ground on which refund claim had been rejected. Further, as the Revenue had not challenged the sanction of six refund claims by the original refund sanctioning authority, they cannot entertain a different ground for rejection in respect of two refund claims alone, the Bench added.

In fine, the Revenue appeal was rejected.

(See 2014-TIOL-2338-CESTAT-MUM)