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Cus - Refund claim is not an Appeal proceeding - Officer considering refund claim cannot sit in Appeal over an assessment made by competent Officer or for that matter review same - Appeal dismissed: CESTAT

By TIOL News Service

MUMBAI, JAN 02, 2016: THE appellant imported completely pre-mutilated woolen rags.

The goods were assessed by the department by enhancing the declared price from Euro 0.15 per kg to USD 0.37 per kg and the appellant claimed the consignment on payment of enhanced rate of duty, under protest.

Thereafter, the appellant filed a refund claim but the same was rejected by both the lower authorities.

The appellant is, therefore, in appeal before the CESTAT.

The AR submitted that the bill of entry has been assessed by the proper officer and the duty is paid on the basis of assessment and in view of this the refund claim cannot be claimed unless the legal remedy of challenging the respective assessment order by filing appeal is exhausted. In support, the AR cited the judgment of the Supreme Court in the case of Priya Blue Industries Ltd. - 2004-TIOL-78-SC-CUS wherein its earlier judgment in the case of CCE vs. Flock (India) Pvt. Ltd. - 2002-TIOL-208-SC-CX was relied upon.

The Bench observed that the only issue in question is the admissibility or otherwise of refund claimed by the appellant. Inasmuch as since the goods were cleared after payment of duty under protest but instead of filing appeal against the assessment order, the appellant has directly filed the refund claim, the appeal is not maintainable, the CESTAT held.

The appeal was dismissed.

(See 2016-TIOL-21-CESTAT-MUM)


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