SUNIL KUMAR Vs. COMMISSIONER OF CUSTOMS, AMRITSAR

JUDGEMENT

(1.) THIS appeal (sic) is at the instance of an applicant (sic) under Section 27 of the Customs Act for refund of an amount of Rs. 1,31,332 alleged to have been paid by him (sic) as excess customs duty. The appellant made an import of 65 bags of White Hing under Bill of Entry dated 26.8.96 declaring value of the consignment at US$ 17600. Customs authorities, Amritsar assessed the value of the same consignment at Rs. 200 per Kg. and thus determined the value of the consignment at Rs. 8,93,025 instead of Rs. 6,40,465 declared by the party and customs duty at Rs. 4,64,374 was imposed.

(2.) Admittedly, the assessee did not challenge the above assessment. On the other hand, he filed an application under Section 27 of the Customs Act for refund of duty contending that the assessment made at the rate of Rs. 200 per Kg. was unsustainable. The application was rejected by the Assistant Commissioner by order dated 28.11.97 holding that the price declared by the party was not the correct assessable value as the price of similar goods determined by deductive method under Rule 8 was Rs. 200 Kg; that the party accepted the said price of Rs. 200 per Kg. and that neither the party paid the duty under protest nor lodged any protest in this regard that the party is not entitled to refund as they accepted the assessable value of Rs. 200 per Kg. without any reservation or protest, and also for the reason that the refund claim is untenable in the light of the doctrine of unjust enrichment. Aggrieved by the above order, the assessee filed an appeal, which was disposed of by the Commissioner (Appeals) by order dated 28.11.97. In the appellate order it was held that the transaction value declared by the appellant was the value for the purpose of assessment of White Hing imported by him but the claim for refund was rejected on the basis of the doctrine of unjust enrichment. It is this order that is under challenge in the second appeal.

(3.) LEARNED Departmental Representative raised a preliminary objection that the application for refund made by the appellant itself is not maintainable under law. The appellant had not challenged the original assessment which was appealable. In support of the above contention the Learned Departmental Representative relied on a decision of the Supreme Court in CCE, Kanpur v. Flock (India) Pvt. Ltd. : 2000 (120) ELT 285 (SC) wherein it has been held that an adjudication order determining classification of goods not challenged despite being appealable cannot be questioned by filing refund claim on the ground that adjudicating authority committed an error in passing earlier order. Learned Counsel appearing on behalf of the appellant would submit that in the present case the Department cannot be permitted to raise the preliminary objection since it did not file an appeal or cross appeal against the finding of the Commission (Appeals) in favour of the appellant on the issue regarding transaction value.