VENKATESWARA HOSPITALS Vs. CC

JUDGEMENT

(1.) Examined the records and heard both sides.

(2.) The appellants had imported certain goods and cleared the same on payment of duties of customs including Countervailing duty (CVD). The CVD payable at the time of clearance was 8% in terms of Notification No. 10/2003 -CE. But CVD was actually paid at the tariff rate of 16%. Subsequently, the party filed a refund claim, which was rejected by the original authority on the ground that the claimant had not adduced any evidence to show that the incidence of duty had not been passed on. The appeal filed against the decision of the original authority was rejected by the first appellate authority, which also held that, in the absence of documentary evidence, the claim was hit by the bar of unjust enrichment. Hence, the present appeal.

(3.) Ld. Consultant for the appellants has relied on Final Order No. 533/2004 dated 2.7.2004 of this Bench in Appeal No. C/282/2003 [Design Classics Exports (P) Ltd. v. CC, Chennai] in support of his contention that the bar of unjust enrichment was not applicable to the subject claim for refund of duty paid on imported capital goods. Ld. DR has raised a fundamental objection, which is to the effect that, in the absence of challenge to the assessment of the relevant Bill of Entry, it was not open to the assessee to claim refund of any party of the duty assessed and paid. In other words, the argument of the learned DR is that the assessment cannot be challenged through a refund claim. In this connection, learned DR has relied on the Supreme Court's decision in CCE Kanpur v. Flock (India) Pvt. Ltd., 2000 (120) ELT 285 (SC) and the following decisions of the Tribunal: (1) National Diary Development Board v. CC, Mumbai, 2003 (57) RLT 16 (CESTAT -Del.) (2) Albert David Ltd. v. CC, New Delhi, 2004 (168) ELT 462 (Tri -Del) (3) Final Order No. 213/2003 -NB (B) dated 10.3.2003 in the case of H.C.L. Perot Systems Ltd. It has been pointed out that, against the Final Order No. 213/2003 ibid, whereby a refund claim was rejected as not maintainable for want of challenge to the order of assessment of Bill of Entry, the assessee filed Civil Appeal with the Supreme Court, which was dismissed.