AIRPORTS AUTHORITY OF INDIA Vs. CC

JUDGEMENT

(1.) The common issue involved in these two appeals is whether a claim for refund of customs duty can be filed without challenging the assessment order made on Bill of Entry.

(2.) Shri J.M. Sharma, learned Consultant submitted that Airports Authority of India imported one runway road marking machine under Bill of Entry dated 28.11.1996 which was cleared by them on payment of duty as per rate prescribed in the Customs Tariff; that Notification No. 36/96 -Cus dated 23.7.1996 (Serial No. 143) exempts navigation, communication, air traffic and landing equipments from payment of Customs duty in excess of 25% and full additional Customs duty provided Airport Authority of India produces a certificate from the Directorate General of Civil Aviation that such equipment is required to be used in the modernization of Airport facilities; that the Directorate General of Civil Aviation had issued a certificate dated 19.11.1996 and accordingly appellants were eligible for the benefit of the exemption notification; that accordingly they filed a refund claim on 20.2.1997 under Section 27 of the Customs Act; that the Deputy Commissioner rejected the refund claim under Order -in -Original No. 85/2000 dated 19.9.2000 on the ground that they had not replied to the deficiency memo and failed to submit evidence regarding unjust enrichment, etc.; that the Commissioner (Appeals) under the Order -in -Appeal No. 134/03 dated 18.5.2003 has rejected their appeal on the ground that there is no evidence to indicate that the duty was deposited by them under protest and that no appeal has been filed against the assessment on the bill of entry; that the Commissioner (Appeals) has relied upon the decisions in the cases of Kopran Limited v. CC and CCE v. Flock (India) Pvt. Limited . The learned Consultant further submitted that the decision in the case of Flock (India) is not applicable to the facts of the present matter inasmuch as in the case of Flock (India) the Adjudicating authority had passed an adjudication order determining the classification of goods differently than what was claimed by the assessee and as they had not challenged the determination of classification, the Supreme Court has held that order cannot be questioned merely by filing a refund claim; that in the present matter there was no his between the appellants and the Department at the time of assessment of Bill of Entry and no appealable order was passed as none was required to be passed as the assessment was done by the Department as claimed by the appellants in Bill of Entry; that the Larger Bench of the Tribunal in the case of Faxtel Systems (India) Pvt. Ltd. v. CC 2004 (169) ELT 265 (T) : 2004 (115) ECR 38 (T -LB) has not expressed "any view on the contention taken by the appellant that if it is only a mere assessment of Bill of Entry without a his involved, the ratio of Flock (India) will not be applicable".

(3.) He mentioned that in view of the observation of the Larger Bench of the Tribunal the issue in the present matter is distinguished.