SESA GOA LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) Heard Shri R.G. Ramani, learned Counsel for the appellant and Shri. C.A. Ferreira, learned Counsel for the respondent.

(2.) It was pointed out by the learned Counsel for the parties that when the matter was admitted, there was no substantial question of law framed. Hence, by consent of the learned Counsel for the parties, following substantial question of law is framed:

(3.) Shri Ramani, learned Counsel appearing for the appellant in support of the above appeal has pointed out that though provisional assessment order was passed in respect of two bills of entry dated 17/01/2007 and one bill of entry on 02/03/2007, nil assessment order were passed by the Proper Officer. Learned Counsel for appellant further points out that in respect of the first bill of entry dated 17/01/2007, the appellant has paid a sum of Rs. 3,01,053/-. Learned Counsel further submits that with regard to the second bill of entry dated 17/01/2007, the appellant has paid a sum of Rs. 2,24,369/-. Learned Counsel further points out that with regard to other bill of entry dated 02/03/2007, the appellant has paid a sum of Rs. 4,75,191/-. Learned Counsel further points out that all these amounts were paid by the appellant under protest. Learned Counsel further points out that by an order dated 14/12/2007 passed by the Assistant Commissioner of Customs & Central Excise Anti Smuggling Unit, the amounts paid by the appellant under protest were ordered to be refunded to the appellant. Learned Counsel further points out that the respondent thereafter preferred an appeal against the said order before the Commissioner of Customs and Central Excise (Appeals) (Commissioner (Appeals), for short) which came to be allowed on the ground that the appellant had not challenged the earlier assessment order and as such, the question of seeking any refund would not arise. Learned Counsel further points out that the appellant thereafter, preferred an appeal before the Customs, Excise & Service Tax Appellate Tribunal (CESTAT, for short) to challenge the order of the Commissioner (Appeals) which appeal came to be rejected. Learned Counsel further points out that as such, the appellant has preferred the above Appeal to quash and set aside the orders passed by the Commissioner (Appeals) as well as CESTATE as according to him, the said orders are incongruous. Learned Counsel further points out that the Commissioner (Appeals) has relied upon the judgment of the Apex Court reported, 2005 10 SCC 433 in the case of Priya Blue Industries Ltd. Vs. Commissioner of Customs, 2005 10 SCC 433 (Preventive) which is not applicable to the facts of the present case. Learned Counsel further points out that the authorities have misdirected themselves to hold that the appellant ought to have challenged the order of assessment, though according to him, such question would not arise and admittedly, the assessment was a nil assessment. Learned Counsel further points out that as the appellant was not aggrieved by the nil assessment orders passed by the Proper Officer, the question of challenging the said order would not arise. Learned Counsel also points out that the CESTAT Authorities have also taken note of the fact that in case the appellant desires to seek reasons for such assessment order, it was incumbent upon the appellant to pray for reasons for such orders. Learned Counsel further submits that the substantial question of law framed by this Court be answered in favour of the appellant.