By TIOL News Service

CHENNAI, APRIL 21, 2018: THE appellant had imported dialyzers and accessories vide two Bills of Entry dated 31.5.2013 and 3.6.2013 filed in self-assessment mode.

In respect of Bill of Entry dated 31.5.2013, the assessment group re-assessed some items, modified the classification heading and disallowed the notification benefit claimed by the appellant under Sl. No. 474 (ii) of Notification No. 12/2012-Cus. dated 17.3.2012.

Appellant paid the differential duty, however, preferred refund claims on the ground that the goods are liable to be assessed under Chapter 9018 and not under Chapter 8421.

The refund claims were rejected on the ground that the claimant had not challenged the order of assessment; that the question of refund of excess duty does not, therefore, arise in view of Supreme Court's decision in Priya Blue Industries - 2004-TIOL-78-SC-CUS.

The Commissioner (Appeals) upheld the rejection of refund in respect of Bill of Entry dated 31.5.2013; however, he set aside the rejection of refund claim in r/o bill of Entry dated 3.6.2013 on the ground that assessment was not challenged and directed the original authority to examine the claim.

Against the portion of the order pertaining to the rejection of refund claim, the appellant has filed appeal before the CESTAT.

It is inter alia submitted that after the amendments made by the Finance Act, 2011 w.e.f 08.04.2011, in section 2(2), section 17 and section 27 of the Customs Act, 1962, no challenge to assessment order is required for claiming refund. And that the apex court decision in Priya Blue Industries (supra) was for the period prior to 08.04.2011.

Reliance is also placed on the following decisions allowing such refund claims –

a. Micromax Informatics Ltd, Vs. Union of India - 2016-TIOL-978-HC-DEL-CUS

b. Micromax Informatics Ltd, Vs. Principal Commissioner of Customs, Chennai vide judgment dated 18.4.2017 in W.P. No.3486 of 2016 - 2017-TIOL-1302-HC-MAD-CUS

It is further submitted that the issue of classification of the imported goods had also been in dispute, however, the same has been settled by the Tribunal vide Final Order No. 41242 to 41248 of 2017 dated 24.8.2017, wherein following the judgments of Hon'ble High Court of Calcutta and Kerala, the imported goods were held as classifiable only under CTH 90189031. Inasmuch as even as per this order, they were very much entitled to the refund of excess customs duty paid on the imported goods.

The AR while supporting the impugned order mentioned that the matter may be remanded to the original authority for passing a speaking order which can then be challenged by the appellant.

The CESTAT considered the submissions and observed that the facts of the present appeals are very much pari materia with the case laws relied upon by the appellant and would apply on all fours to the facts of the present case.

After extracting in extenso the orders cited by the appellant, the Bench concluded that there is no necessity to challenge an assessment order and that the adjudicating authority is in error to reject the refund claim on the ground that self-assessment was not challenged.

The impugned order was set aside and the appeal was allowed with consequential relief.

(See 2018-TIOL-1268-CESTAT-MAD)