Full Judgment Text
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CASE NO.:
Review Petition (civil) 96 of 2004
PETITIONER:
M/s. Priya Blue Industries Ltd.
RESPONDENT:
Commissioner of Customs (Preventive)
DATE OF JUDGMENT: 17/09/2004
BENCH:
S.N. VARIAVA & H. K. SEMA
JUDGMENT:
J U D G M E N T
In
Civil Appeal No. 9045 of 2003
S. N. VARIAVA, J.
By this Review Petition, an Order dated 14th November,
2003 is sought to be reviewed.
The facts necessary for the purposes of this Order are as
follows:
The Petitioners had imported a ship for breaking purposes. They filed
a Bill of Entry. The amount of duty payable was assessed. The
Petitioners paid the duty under protest. They then filed a Claim for
refund of Rs. 79,64,648/- on the ground that duty had been wrongly
levied. Their refund was rejected on 30th August, 2000. The Appeal
filed by them was rejected on 31st October, 2001. The further Appeal
filed before the Customs, Excise and Gold (Control) Appellate Tribunal
(CEGAT) was dismissed by the Tribunal on 28th May, 2002. The
Tribunal followed the Judgment of this Court in the case of Collector of
Central Excise vs. Flock (India) Pvt. Ltd. reported in (2000) 6 SCC
650. The Tribunal held that as no Appeal had been filed against the
Assessment Order the refund claim was not maintainable. The Civil
Appeal filed before this Court was dismissed by our Order dated 14th
November, 2003.
As it has been contended that the provisions of the
Customs Act, 1962 are not in para-materia with the provisions of the
Excise Act and that the Judgment of this Court in Flock (India)’s case
(supra) would not be applicable, notice was issued.
We have heard parties at great length.
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 would
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 could claim refund on that basis even
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without filing an Appeal.
We are unable to accept this submission. Just such a
contention has been 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 modified 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 proceeding. The Officer 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.
We also see no substance in the contention that provisions
for a period of limitation indicates that a refund claim could be filed
without filing an Appeal. Even under Rule 11 under the Excise Act the
claim for refund had to be filed within a period of six months. It was
still held, in Flock (India)’s case (supra), that in the absence of an
Appeal having been filed no refund claim could be made.
The words "in pursuance of an Order of assessment" only
indicate the party/person who can make a claim for refund. In other
words, they enable a person who has paid duty in pursuance of an
Order of assessment to claim refund. These words do not lead to the
conclusion that without the Order of assessment having been modified
in Appeal or reviewed a claim for refund can be maintained.
In our view, the ratio in Flock (India)’s case (supra) fully
applies. We, therefore, see no substance in the Review Petition.
Accordingly, the Review Petition stands dismissed with no order as to
costs.