Section 27,:No refund without challenging assessment order

Assessee can't claim exemption by way of refund without challenging assessment order

[2015] 57 taxmann.com 403 (Madras)

HIGH COURT OF MADRAS

Commissioner of Customs (Appeals)

v.

Ace Designers

Section 27, read with sections 46, 50 and 149, of the Customs Act, 1962, section 11B of the Central Excise Act, 1944 and section 83 of the Finance Act, 1994 - Refund - General - Assessee exported a machine but on non-receipt of payment therefor, re-imported same on 13-8-2001 - Re-import was assessed to 4 per cent Special CVD/SAD duty - Assessee claimed that it was eligible for exemption, but, in order to avoid demurrage, it had paid 4 per cent SAD and, therefore, it was entitled to refund of SAD duty paid - Assessee filed refund claim on 11-10-2001 - Department denied refund claim on ground that SAD was payable on re-imports also and in any case, no refund claim could be entertained so long as assessment order stood unchallenged and non-modified - HELD : Assessee had taken a new plea at time of refund claim by placing reliance on notification no.18/2000-Cus., which was not claimed in bill of entry, as assessed - Having not challenged order of assessment, assessee cannot, at a belated stage, claim refund by pressing into service another notification - Hence, refund claim was rejected as non-maintainable [Paras 12 to 15] [In favour of revenue]

Circulars and Notifications : Notification No.94/96-Cus dated 16-12-1996, Notification No.18/2000-Cus.N