Full Judgment
2. The relevant facts that arise for consideration are that the appellants filed Bill of Entry for the clearance of the goods imported by him and discharged the duty liability as assessed on the bill of entry. Subsequently they came to understand that S.A.D. was not payable on the goods imported by them and hence they filed the refund claim before the authorities. The adjudicating authority rejected the refund claim on the ground that the appellants did not challenge the assessment of bill of entry, and hence, refund claim cannot per se challenge the assessment and assessment has become final. On appeal the Commissioner (Appeals) also concurred with the findings of the adjudicating authority. Hence, this appeal.
3. Learned Advocate appearing for the appellants submits that this case is covered by the decision of the Karnataka Power Corporation Ltd. v.C.C. (Appeals), Chennai, reported at 2002 (143) E.L.T. 482 (S.C). It is the submission that this decision is of 3 Member Bench, and hence, over rule all other decisions. He also relies upon the current decision of the Tribunal in the case of Goa Shipyard Ltd. v. C.C. (A), Sahar, reported in 2006 (72) RLT 479 to strengthen his proposition that the refund claim can be entertained by the authorities even if the assessment on the bill of entry is not challenged.
4. Learned D.R. on the other hand submits that the bill of entry filed by the assessee were assessed by the proper officer and having accepted the assessment the appellants cannot file any refund claim without challenging the said assessment. He relies upon the decision of the Hon'ble Supreme Court in the case of Priya Blue Industries, . He also relied upon the decision of the Hon'ble Tribunal in the case of IFFCO v. C.C. Rajkot 2005 (69) RLT 694 (CESTAT-Del.). It is the submission that the decision of IFFCO has considered the decision of the Karnataka Power Corporation and still has relied upon the decision in the case of Flock India and dismissed the appeal.
5. Considered the submissions made by both sides and perused the records. It is not in dispute that the appellants' refund claim has arisen due to his excess payment of SAD on assessment of the bill of entry by the proper officer. The said bill of entry was assessed by the proper officer under Section 17(1) of the Customs Act, 1962. Once the bill of entry is assessed whether right or wrong the option open to the appellant is to file an appeal against the said assessment and contest the whole bill of entry, in spite of that the appellants preferred refund claim which indirectly sought open the assessment of bill of entry which has already attained finality having assessed by a proper officer.
6. The 3 Member Bench of the Hon'ble Supreme Court in the case of Karnataka Power Corporation Ltd. (supra) has come to the conclusion in that case, on a question of fact, that after the assessment of bill of entry the appellants therein had sought re-assessment of their goods by writing a letter to the Asst. Commissioner of Customs. Since the letter was not attended to by the authorities the Hon'ble Supreme Court came to the conclusion that the Tribunal erred in coming to the conclusion that the refund claim cannot be used to open the assessment of bill of entry. The Hon'ble Supreme Court in that case was grappling with the fact that since the authorities did not themselves respond to the appellants' letter for the re-assessment the whole issue is vitiated and struck down the decision of the Tribunal. In the case of Priya Blue Industries Ltd. the Hon'ble Supreme Court at Paras 5 and 6 has held as under: 5. Under Section 27 of the Customs Act, 1962 a claim for refund can be made by any person who had (a) paid duty in pursuance of an Order of Assessment or (b) a person who had borne the duty. It has been strenuously submitted that the words "in pursuance of an Order of Assessment" necessarily imply that a claim for refund can be made without challenging the assessment in an appeal. It is submitted that if the assessment is not correct, a party could file a claim for refund and the correctness of the Assessment Order can be examined whilst considering the claim for refund. It was submitted that the wording of Section 27, particularly, the provisions regarding filing of a claim for refund within the period of 1 year or 6 months also showed that a claim for refund could be made even though no Appeal had been filed against the Assessment Order. It was submitted that if a claim for refund could only be made after an Appeal was filed by the party, then the provisions regarding filing of a claim within 1 year or 6 months would become redundant as the Appeal proceedings wound never be over within that period. It was submitted that in the claim for refund the party could take up the contention that the Order of Assessment was not correct and cound claim refund on that basis even without filing an Appeal.
6. We are unable to accept this submission. Just such a contention has begn negatived by this Court in Flock (India)'s case (supra).
Once an Order of Assessment is passed the duty would be payable as per that order. Unless that Order of assessment has been reviewed under Section 28 and/or mmdified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceedings. The Mfficer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order.
From the above it is very clear that the Hon'ble Supreme Court in Priya Blue case was seized with the issue regarding the final assessment of bill of entry and came to conclusion that refund claim cannot be used to reopen the final assessment. The issue involved in this case is squarely covered by the decision of the Hon'ble Supreme Court in the case of Prkyc Blue Industries (supra).
7. In view of the above the impugned Order deserves to be upheld and calls for no interference. Appeal dismissed.