Bsl Wulfing Ltd. Vs. Cce

Bsl Wulfing Ltd. vs Cce

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi Decided Dec 03, 2004

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Citation: sooperkanoon.com/37274
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi
Judge: P Bajaj, M T K.C.
Decided On: Dec 03, 2004
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

Bsl Wulfing Ltd.

Respondent

Cce

Legal References

Reported In: (2005)(98)ECC466

Excerpt

.....this appeal, the appellants have made challenge to the impugned order-in-appeal vide which the commissioner (appeals) has rejected their refund claim of customs duty on the ground that the original assessment order was not challenged by them.3. the facts are not much in dispute. the appellants imported jacquard machine and on the presentation of the bill of entry by them, for the purpose of computing customs duty on it the machine was held to be classifiable under tariff heading 8448.11 as auxiliary machine. the payment of duty was, however, deferred as at that time the appellants were 100% eou but at the time of debonding they were called upon to pay duty as assessed initially, the appellants accordingly paid duty and got debonded.4. after payment of duty the appellants lodged refund claim on the ground that duty was wrongly charged from them by classifying the machine under tariff heading 8448.11 as the machine was part of weaving machine and attracted lower rate of duty. in the face of these facts, in our view, the commissioner (appeals) has rightly rejected the claim of the appellants. they could lodge claim only after getting the assessment order set aside. the assessment order has attained finality as it was never challenged by the appellants. in the case of priya blue industries ltd. v. cc (preventive), 2004 (96) ecc 217 (sc): 2004 (172) elt 145 (sc), it has been observed by the apex court that refund claim contrary to assessment order, is not maintainable without order of assessment having been got modified in appeal or reviewed under section 28 of customs act, 1962. officer considering refund claim cannot sit in appeal over an assessment made by a competent officer. the apex court has confirmed its earlier decision in collector of central excise v.flock (india). pvt. ltd., 2000 (71) ecc 4 (sc): 2000 (120) elt 285 (sc). in the face of this provision of law laid down by the apex court, the refund claim of the appellants has been rightly rejected by the.....

Full Judgment

1. In this appeal, the appellants have made challenge to the impugned Order-in-Appeal vide which the Commissioner (Appeals) has rejected their refund claim of customs duty on the ground that the original assessment order was not challenged by them.

3. The facts are not much in dispute. The appellants imported Jacquard machine and on the presentation of the bill of entry by them, for the purpose of computing customs duty on it the machine was held to be classifiable under Tariff Heading 8448.11 as auxiliary machine. The payment of duty was, however, deferred as at that time the appellants were 100% EOU but at the time of debonding they were called upon to pay duty as assessed initially, the appellants accordingly paid duty and got debonded.

4. After payment of duty the appellants lodged refund claim on the ground that duty was wrongly charged from them by classifying the machine under Tariff Heading 8448.11 as the machine was part of weaving machine and attracted lower rate of duty. In the face of these facts, in our view, the Commissioner (Appeals) has rightly rejected the claim of the appellants. They could lodge claim only after getting the assessment order set aside. The assessment order has attained finality as it was never challenged by the appellants. In the case of Priya Blue Industries Ltd. v. CC (Preventive), 2004 (96) ECC 217 (SC): 2004 (172) ELT 145 (SC), it has been observed by the Apex Court that refund claim contrary to assessment order, is not maintainable without order of assessment having been got modified in appeal or reviewed under Section 28 of Customs Act, 1962. Officer considering refund claim cannot sit in appeal over an assessment made by a competent officer. The Apex Court has confirmed its earlier decision in Collector of Central Excise v.Flock (India). Pvt. Ltd., 2000 (71) ECC 4 (SC): 2000 (120) ELT 285 (SC). In the face of this provision of law laid down by the Apex Court, the refund claim of the appellants has been rightly rejected by the Commissioner(Appeals). The impugned order passed by him being perfectly valid, is upheld.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Delh... Same Parties Bsl Wulfing Ltd. vs Cce Same Subject Service Tax Same Judge P Bajaj, M T K.C.