FAXTEL SYSTEM (INDIA) PVT. LTD. Vs. CC

JUDGEMENT

(1.) THIS appeal at the instance of the Importer challenging the order passed by the Commissioner (Appeals) rejecting the application for refund had come up for consideration before this Larger Bench pursuant to reference made by the regular bench under Miscellaneous Order No. 128/2003. The question to be considered is whether the ratio of the decision of the Supreme Court in CCE, Kanpur v. Flock (India) Pvt. Ltd., 2000 (71) ECC 4 (SC): 2000 (40) RLT 131 (SC) which arose in an application under Rule 11 of erstwhile Central Excise Rules (present Section 11B) shall be applied to an application for refund under Section 27 of the Customs Act, 1962. In Flock India the Hon'ble Supreme Court took the review that in a case where an adjudicating authority has passed on order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing the order. When the Revenue sought to support the order impugned on the basis of the ratio of the decision of the Supreme Court in Flock India, the appellant sought to draw support from the decision of the Kolkata Bench of the Tribunal in Mecon Ltd. v. CCE, Calcutta 2003 (55) RLT 219 wherein it has been held that refund claim of excess duty paid as per assessment of bill of entry is entertainable, though assessment is not challenged by filing appeal. Flock India was distinguished on the ground that provisions of Section 11B of the Central Excise Act and Section 27 of the Customs Act are not pari materia. Revenue relied on the decision of this Tribunal in National Engineering Industries Ltd. v, CCE, Jaipur, 2002 (79) ECC 348 : 2002 (49) RLT 898 where an application for refund under Section 27 of the Customs Act, 1962 was dismissed on the ground that the assessment order has not been challenged by filing appeal. Ratio of Flock India was followed. Reliance was also placed on Tribunal decision in M/s. Motilal Dulichand (P) Ltd. v. CC, New Delhi Final Order No. 590/2002 -A dated 22.11.2002 were also Flock India was followed. Appeal filed by the party against the above order was dismissed by the Hon'ble Supreme Court in 2003 (157) ELT A265. Similar view taken by the Tribunal in Super Cassettes Industries Ltd. v. CCE, Kolkata, 2003 (57) RLT 291 was affirmed by the Hon'ble Supreme Court by dismissing the appeal filed by the party 2003 (58) RLT F9.

(2.) IN Kopran Ltd. v. CC, New Delhi, 2002 (80) ECC 341 (T) : 2002 (141) ELT 694 the Tribunal applied the ratio of Flock India in the case of assessment of bill of entry not challenged by the importer. The above decision was followed in Priya Blue Ind. Ltd. v. CC, Ahmedabad, 2002 (148) ELT 809. The above decision was taken in appeal by the party before the Supreme Court and the Civil Appeal 9045/2003 was dismissed by the Hon'ble Supreme Court. It is submitted at the Bar that subsequently Hon'ble Supreme Court issued notice in Review Petition (Civil) No. 96/2004 in Civil Appeal No. 9045/2003.

(3.) WE heard Shri Sridharan, learned Advocate on behalf of the appellant and Shri S.M. Tata and Ms. K.A. Misra learned DRss on behalf of the respondent. After addressing detailed arguments on the difference between the language of Section 11B of the Central Excise Act and Section 27 of the Customs Act, 1962 learned Counsel for the appellant submitted that when contentions are raised by the assessee and an adjudication order is issued it will not be open for the assessee to challenge the adjudication order on the Bill of Entry merely by filing an application for refund. The position will be different when there is no Lis between the parties and it was only a mere assessment of the bill of entry. 4. In such cases an application under Section 27 will be maintainable without challenging the Bill of Entry assessment separately. In the present case admittedly there was Lis between the parties and order of adjudication was passed which was not challenged by filing an appeal. Therefore, according to the learned Counsel the question whether the ratio of Flock India would be applicable in the case of mere assessment of Bill of Entry need not be decided in this case. 5. In view of the above discussion we hold that application filed by the appellant for refund under Section 27 was only to be rejected by applying the ratio of the decision in Flock India. But we make it clear that we do not express any view on the contention taken by the appellant that if it is only a mere assessment of bill of entry without a Lis involved, the ratio of Flock India will not be applicable. 6. The appeal stands dismissed.