Gujarat High Court Case Information System
Print
TAXAP/637/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 637 of 2010
=========================================
COMMISSIONER
OF CUSTOMS - Appellant(s)
Versus
ADANI
WILMAR LIMITED - Opponent(s)
=========================================
Appearance :
MS
AMEE YAJNIK for
Appellant
None for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MS.JUSTICE HARSHA DEVANI
and
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 19/01/2011
ORAL
ORDER
(Per
: HONOURABLE MS.JUSTICE HARSHA DEVANI)
This
appeal under section 130G of the Customs Act, 1962 (the Act) has
been preferred by the Commissioner of Customs, Kandla against common
order dated 4.2.2009 made by the Customs, Excise & Service Tax
Appellate Tribunal (the Tribunal), in 13 appeals. In the
circumstances, the present appeal is treated as an appeal filed in
relation to Appeal No.C/1317 of 2005 only.
The
appellant, has challenged the impugned order of the Tribunal by
proposing the following questions:
“[a] Whether
the Tribunal was correct in holding that the refund claims can be
filed without challenging the assessment amounts to challenging the
assessment or otherwise?
[b] Whether
the Tribunal was correct to hold that the filing of refund claim
even before the final assessment amounts to challenging the
assessment or otherwise?
[c] Whether
the Tribunal was correct to uphold Commissioner (A) order containing
direction to serve the copy of final assessment order to importer,
if the same has not been done by the Department, awaiting decision
in the present case, and directing to serve the same now on receipt
of order to enable to challenge the same before appropriate forum by
the importer?
[d] Whether
in the facts and circumstances of the mentioned above, the Hon’ble
Tribunal was right in law by disposing the appeal of appellant or
otherwise?”
The
facts of the case stated briefly are that the respondent assessee
imported Crude Palmolein/oil and other oil in bulk and filed 13
bills of entry for clearance of the same. The ullage quantity being
more than the quantity shown in the bill of lading, duty was paid on
the ullage quantity. Subsequently, out turn (shore tank)
reports showed that the oil received in each case was less than the
quantity in the respective ullage report, on which duty was
initially paid. The Board vide circular No.96/2002-Cus. dated
27.2.2002 clarified that in case of bulk liquid imports, the shore
tank received quantity should be taken as basis for levy of customs
duty and the provisional assessment should be finalized accordingly.
On the basis of the above Circular, the assessee filed refund claims
in respect of the excess duty paid by it. Subsequently, the
provisional assessments were finalized on 22.4.2003 by taking the
ullage quantity into consideration. The original adjudicating
authority, while dealing with the claims filed by the assessee,
examined the relevant facts including unjust enrichment angle and
sanctioned the refund claims. The revenue preferred appeals before
the Commissioner (Appeals), who disposed of the appeals by setting
aside the orders sanctioning refund. However, the Commissioner
(Appeals) was of the view that injustice and impropriety had been
committed by the lower authority in not giving notice to the
respondent before finalizing the assessments and in not
communicating the final assessment orders in writing to the
respondent. He, therefore, directed the lower authority to
communicate to the respondent, in writing, the final assessment
orders, in case the assessee may like to challenge the assessments
in accordance with law. Against the said order, the respondent –
assessee preferred second appeals before the Tribunal. The Tribunal
noted that there was no dispute about the assessee’s entitlement to
the claims
on merits. The only objection raised by the revenue was that, the
final assessment orders had not been challenged. Referring to the
order of the Commissioner (Appeals), the Tribunal noted that the
Commissioner (Appeals) had not rejected the refund claims in its
totality on the ground of non-challenge of assessed bills of entry,
but had very judiciously directed the revenue authorities to serve a
copy of the assessed bill of entry to the assessee so as to enable
it to challenge the same. The Tribunal noted that there was no
dispute about the merits of the case and the assessee had already
been given an opportunity of challenging the assessment order, which
was only a procedural and technical aspect, and upheld the order of
Commissioner (Appeals) containing directions to serve copy of the
assessed bills of entry to the assessee, observing that if the same
had not been done by the revenue, awaiting decision in the present
appeal the same may be served now on receipt of the order and shall
be challenged by the assessee before the appropriate forum.
Thereafter the refunds claim in dispute, shall be decided.
Ms.
Amee Yajnik, learned Senior Standing Counsel appearing on behalf of
the appellant has assailed the impugned order of the Tribunal by
placing reliance on the grounds stated in the memo of appeal.
From
the facts noted hereinabove, it is clear that the refund claims
sanctioned in favour of the assessee have been set aside by the
Commissioner (Appeals) on the
ground that the final assessment orders had not been challenged by
the assessee. It is also an admitted position that at the relevant
time, final assessment orders had not been served upon the assessee.
In the circumstances, the Commissioner (Appeals), while setting
aside the sanctioned refund claims, has taken care of the situation
by directing that the orders of final assessment be served upon the
assessee so as to enable the assessee to challenge the same, if it
so desires and file refund claim thereafter. The Tribunal has merely
endorsed the view taken by the Commissioner (Appeals). As noted
earlier, it was the assessee who had preferred appeals against the
order of Commissioner (Appeals) before the Tribunal. The revenue had
accepted the order made by the Commissioner (Appeals). As such, when
the Tribunal has merely endorsed the view taken by the Commissioner
(Appeals), the revenue cannot be permitted to challenge the same as
it would indirectly amount to challenging the order made by the
Commissioner (Appeals).
In
any view of the matter, the approach adopted by the Commissioner
(Appeals) is a judicious one, whereby while setting aside the orders
sanctioning the refund claims, he has taken care to see that no
injustice is done to the assessee and has merely directed the lower
authority to provide copies of the final assessment orders to the
assessee so as to enable it to challenge the same if it so deemed
fit. The Tribunal has merely reiterated the view taken by the
Commissioner
(Appeals). Moreover, revenue has succeeded in its appeals before the
Commissioner (Appeals) and the Tribunal, in the assessee’s
appeals, has not disturbed the order passed by the Commissioner
(Appeals), whereby the orders sanctioning the refund claims have
been set aside. In the circumstances, merely because the lower
authority has been directed to furnish copies of the final
assessment orders, which it was even otherwise duty bound to
furnish, and it is left open to the assessee to file refund claims
thereafter, is no reason for the revenue to feel aggrieved. In the
circumstances, even on merits, the appeal is devoid of any merit.
In
the light of the aforesaid, in the absence of any legal infirmity in
the impugned order of the Tribunal, the same does not give rise to
any question of law, much less, a substantial question of law so as
to warrant any interference. The appeal is, accordingly, dismissed.
[HARSHA
DEVANI, J.]
[H.B.ANTANI,
J.]
parmar*
Top