The Supreme Court has upheld
the order passed by Customs, Excise, and Service Tax Appellate Tribunal
and set aside the orders passed by the High Courts of Delhi and Madras
in a case pertaining to appeal on excise duty refunds by ITC Limited.
a judgement passed on September 18, a bench headed by Justice Arun
Mishra and comprising Justices Navin Sinha and Indira Banerje, ruled
that the applications for refund were not maintainable.
Supreme Court was examining the question involved in these appeals
whether in the absence of any challenge to the order of assessment in
appeal, any refund application against the assessed duty can be
The tribunal had in the case of ITC Limited opined
that unless the order of assessment is appealed, no refund application
against the assessed duty can be entertained.
As per the Supreme
Court judgement, while interpreting provisions contained in Section 27
of the Act, the Delhi High Court had opined that when there is no
assessment order for being challenged in appeal, which is passed under
Section 27(1)(i) of the Act, because there is no contest and hence no
adversarial assessment order, the cases would be covered by the
provision of Section 27(i) (ii) and refund applications can be
maintained by the assessee even in the absence of filing appeals against
the assessed bill of entry.
The High Court of Madras has opined similarly.
we consider the overall effect of the provisions prior to amendment and
post 'amendment under Finance Act, 2011, we are of the opinion that the
claim for refund cannot be entertained unless the order of assessment
or self-'assessment is modified in accordance with law by taking
recourse to the appropriate proceedings and it would not be within the
ken of Section 27 to set aside the order of self-assessment and reassess
the duty for making refund; and in case any person is aggrieved by any
order which would include self-assessment, he has to get the order
modified under Section 128 or under other relevant provisions of the
Act," the Supreme Court noted.