The Bangalore bench of the Customs Excise & Service Tax Appellate Tribunal (CESTAT) upheld the order of the Income Tax Appellate Tribunal (ITAT) for reassessment of the bill of entry rejection of the refund claim of Excess Customs Duty.
M/s. Rajhans Enterprises Respondent hearing had imported polymers of ethlin and cleared the same by paying appropriate duty. Thereafter Respondent submitted an application dated 02/12/2015 for a refund of the excess amount on the ground that due to an inadvertent mistake, they have failed to claim the benefit of notification No. 01/05 dated 01/05/2018 and as per said notification, Respondent is eligible for the benefit of concessional rate of basic custom duty since the goods are imported from Republic of Singapore.
The refund claim was rejected by the adjudication authority vide Order-in-Original dated 30/05/2016 on the ground that the importer has not challenged the assessed bill of entry. Further held that the Respondent is not eligible since the duty was not paid under protest. Aggrieved by the said order, Respondent filed an appeal before Commissioner (Appeals) and Commissioner (Appeals) vide Order-in-Appeal dated 31/01/2017 rejected the appeal on the ground that the onus to avail the exemption notification is always on the importer and such exemption is subject to fulfilment of certain laid down conditions.
The matter was taken for de novo adjudication and the Adjudicating Authority rejected the refund application on the ground that the self-assessed bill of entry is as the order of assessment as per Section 2(2) of the Customs Act, 1962. Thus it is an appealable order and in the absence of any appeal challenging the said assessment order, the request for re-assessment of the bill of entry to avail the benefit of Notification No. 01/2015 dated 05/01/2015 is unsustainable.
The counsel for the respondent submitted that as per the National Litigation Policy, any dispute of above Rs.50,00,000/- can only be challenged before this Tribunal. In the present appeal, the amount involved is only Rs.11,07,185/-. Further argued that once the Tribunal remanded the matter with a specific direction to re-assess the bill of entry and when the Final Order was not challenged before any high forum, the Adjudication Authority is bound to consider and pass appropriate order on merit and only thereafter dispose of the Refund application rather than reviewing the findings of the final order issued by this Tribunal.
A two-member bench of Mr P A Augustian, Member (Judicial) and Mrs R Bhagya Devi, Member (Technical) observed that the Tribunal has issued a specific direction to the adjudication authority to first decide the request for re-assessment of the Bill of Entry on merit and thereafter decide the refund application. However, rejecting the claim of the respondent on the same ground that there is an omission on the part of the respondent to challenge the initial assessment amounts to review the order of this Tribunal and it is illegal and unsustainable.
“In the absence of any appeal challenging the ibid final order, Appellant is bound to follow the direction of this Tribunal and consider the request for re-assessment on merit”, the bench held.
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