2004 (96) ECC 435 (Tri.-LB)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Larger Bench

Justice Mrs. K.K. Usha, President, S/Shri S.S. Kang, Member (J) and
C.N.B. Nair, Member (T)

Albert David Ltd.

Versus

Commissioner of Customs, New Delhi

Appeal No. C/120/2003-NB(A)

Final Order No. 450/2004-NB(A), dt. 24.5.2004

Refund

Claim -- Application under Section 27 of the Customs Act, 1962 was only to be rejected by applying the ratio of the decision in CCE Kanpur v. Flock (India) Pvt. Ltd., 2000 (71) ECC 4 (SC). The appeal is dismissed. Final Order No. 423/2004-NB(A) dated 17.5.2004 followed. Question whether the ratio of the decision of the Supreme Court in CCE, Kanpur v. Flock (India) Pvt. Ltd., 2000 (71) ECC 4 (SC) is applicable if it is only a mere assessment of Bill of Entry left open.

[Paras 2 & 3]

Appeal is dismissed

PRESENT :

S/Shri D. Chitlangia, Representative and V. Sridharan, Adv. for the appellant.

Ms. K.A. Mishra and Shri S.M. Tata, SDRs, for the respondent.

Case Cited :

CCE Kanpur v. Flock (India) Pvt. Ltd., 2000 (71) ECC 4 (SC)..................... [Paras 1, 2 & 3]

Per : Justice K.K. Usha

The question to be considered in this case 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 (120) ELT 285 (SC) : 2000 (40) RLT 131 (SC) which arose in 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. A similar issue was considered by us in our Final Order No. 423/2004-NB(A), dated 17.5.2004.

2. In the above-mentioned case 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 of refund. The position will be different when there is no lis between the parties and it was only a mere assessment on the Bill of Entry. In the facts of the case it was submitted that there was a lis between parties. Therefore, we held that the application filed by the appellant therein for refund under Section 27 was only to be rejected by applying the ratio of the decision in Flock India. But we expressed no view on the contention taken by the appellant regarding mere assessment of Bill of Entry without a lis involved.

3. In the present case also identical contentions are raised. It is submitted that there is lis between the parties. Under these circumstances, we dismiss the appeal following our order, dated 17.5.2004. We make it clear that we are not expressing any view on the contention of the appellant that if it is only a mere assessment of Bill of Entry, the ratio of Flock India will not be applicable.

4. The appeal stands dismissed as above.

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