HINDALCO INDUSTRIES LTD. Vs. COMMISSIONER OF CUSTOMS, AHMEDABAD

JUDGEMENT

(1.) THE issue involved in the present appeal is the refund of Rs. 46,00,139/ - being the amount, 2% education cess on basic customs duty debited through D.E.P.B. scrip.

(2.) AS per facts on record, the appellant imported 11 consignments of copper concentrate and cleared the same under 11 bills of entry. The said bills of entry were assessed provisionally. At the time of provisional assessment, the appellant paid customs duty through D.E.P.B. scrip and 2% education cess on CVD and 2% education cess on total customs duty through TR -6 challans. At the time of final assessment of the said bills of entry, the 2% education cess, which was not paid by the appellant on the basic customs duty and debited through D.E.P.B. scrip was assessed against them and was recovered in terms of the Board Circular No. 5/2005 -Cus., dated 31 -1 -2005.

(3.) SUBSEQUENTLY , the appellant filed refund claim of 2% education cess paid by them on account of basic customs duty, which was debited through D.E.P.B. scrip vide their refund claim dated 30 -12 -2005. The said refund claim stands denied by the authorities below primarily on the ground that final assessment of bills of entry was not put to challenge by the appellant. As such, refund claim arising out of the same cannot be entertained in view of the law declared by the HSC in the case of Priya Blue Industries Limited v. Commissioner - 2004 (172) E.L.T. 145 (S.C.).