KERALA HORTICULTURE DEVELOPMENT PROGRAMME Vs. CC, COCHIN

JUDGEMENT

(1.) THE claim for refund of duty of Rs. 4,54,10,258/ - filed by the appellants herein on 25 -11 -1999 on the ground that they were entitled to exemption from payment of duty in terms of Notification 148/94 as amended by Notification 48/96, has been rejected on the ground that they failed to substantiate their claim for refund with adequate correspondence and material to establish that the goods imported were gifted free of cost under the bilateral agreement between the Government of India and the European Union.

(2.) WE have heard both sides.

(3.) WE note that the bills of entry under which the plant and machinery for food processing factory were imported, were initially assessed provisionally and then finally assessed by the Assistant Commissioner on 25 -2 -1999 and at that time there was no request from the importers to assess the goods extending the benefit of exemption under Notification 148/94 as amended. The order of finalisation of assessment has not been challenged by way of appeal. Therefore, it is not open to the importers to seek refund in the light of the Apex Courts decision in Flock India Ltd. v. CCE - 2000 (120) E.L.T. 285 (S.C.) followed by the Tribunal in the case of Super Cassettes Industries Ltd. v. CC - 2003 (162) E.L.T. 1148. Following the ratio of the Apex Courts decision cited supra, we hold that the importers are not entitled to refund, uphold the impugned order and reject the appeal.