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578 EXCISE LAW TIMES [ Vol. 372

statutory provisions under the relevant Act or Rules or notification exempting
levy of sugar cess on imported sugar. The notification relied on by the respond-
ents before the adjudicating authority does not exempt payment of sugar cess
directly but exempts cess only in respect of any sugar which has been manufac-
tured out of any raw sugar on which cess has already been paid. Thus it is clear
that cess is payable on imported raw sugar in the instant case. The order passed
by the Commissioner (Appeals) relating to refund claim is therefore erroneous
and requires to be set aside.
3. It is also submitted by her that the Bills of Entry connected to this is-
sue have been assessed which includes payment of Central Excise duty apart
from other duties. The respondent did not request for any provisional assess-
ment at the time of assessment of Bill of entry. If aggrieved by the assessment
order, the respondent has an option to file appeal before the appropriate forum.
Since assessments have been finalized, the decision in the case of Priya Blue In-
dustries Ltd. v. CC (Preventive) - 2004 (172) E.L.T. 145 (S.C.) and that of ITC Ltd. v.
CCE Kolkata - 2019 (368) E.L.T. 216 (S.C.) would be applicable and the refund
claim is not sustainable. The Commissioner (Appeals) ought not to have allowed
the appeal.
4. Ld. Counsel Shri M.N. Bharathi appeared on behalf of the respond-
ent. It is submitted by him that Commissioner (Appeals) in para-4 has correctly
analyzed the facts and the law applicable in the present case. Appellants had im-
ported raw sugar which was used for manufacture of sugar and removed on
payment of Central Excise duty. As per Section 3 of Sugar Cess Act, 1982 cess is
leviable as the duty of excise on sugar manufactured by any sugar factory. Thus
appellants have paid sugar cess while removing the manufactured sugar from
their factory. The present refund claim relates to the sugar cess paid by them un-
der protest on the imported raw sugar. At the time of filing of Bill of Entry, ap-
pellants were asked to pay sugar cess as part of the additional duty of customs
on the imported goods. The appellant then informed the department that they
are not liable to pay sugar cess and only to have the goods cleared they paid the
cess amount marking their protest. Thereafter refund claim has been filed. The
department did not initiate any proceedings by issuing SCN even though re-
spondent marked their protest while paying sugar cess. The department cannot
now turn around and say that respondent has not requested for reassessment of
the Bill of Entry.
5. It is further pointed out by Ld. Counsel that sugar cess is levied by
Ministry of Consumer Affairs, Food and Public Distribution. It is collected as
duty of excise by the Department of Revenue. As per C.B.E. & C. Letter No.
345/2/2004-TRU, dated 10-8-2004, it is clarified that such cess is not duty of ex-
cise. The Commissioner (Appeals) thus correctly held that cess is not payable on
the sugar imported into India.

6. Heard both sides.
7. The first issue that arises for consideration is whether decision in the
case of Priya Blue Industries (supra) and ITC Ltd. (supra) would apply to the facts
of this case. Ld. A.R has argued that since respondent has not requested for reas-
sessment of the Bill of Entry, they are not eligible for refund. It is not disputed
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