2016 (11) TMI 1427 - HC - Customs

Refund u/s 27 of the Customs Act - payment under protest - denial of refund on the ground that the petitioner could not establish its entitlement to CENVAT credit - Held that - reliance placed in the decision in the case of M/s SRF Ltd. M/s ITC Ltd Versus Commissioner of Customs Chennai Commissioner of Customs (Import And General) New Delhi 2015 (4) TMI 561 - SUPREME COURT where the CEGAT has come to the conclusion that when the credit under the CENVAT Rules is not admissible to the appellant question of fulfilling the aforesaid condition does not arise - A direction is issued to the respondents to process the petitioner s refund claim and pass appropriate orders having regard to the fact the petitioner - petition allowed by way of remand.

Summary

Issues:
1. Direction sought for processing refund application under Section 27 of the Customs Act for excess payments on import.
2. Rejection of refund claim by Asstt. Commissioner of Customs based on entitlement to CENVAT credit.
3. Interpretation of principles related to additional customs duty under Section 3(1) of the Customs Tariff Act.
4. Comparison with previous rulings like SRF Ltd. and Micromax Informatics Ltd.
5. Application of law laid down by the Supreme Court in SRF Ltd. to determine the success of the refund claim.

Analysis:

1. The petitioner requested a direction for the respondents to process its refund application under Section 27 of the Customs Act, seeking a refund of additional customs duty paid on imports under Section 3(1) of the Customs Tariff Act. The petitioner imported mobile handsets and claimed to have made excess payments under protest, complying with Notification No. 12/2012-Ex. The impugned order rejected the refund claim, citing the petitioner's failure to establish entitlement to CENVAT credit as the reason for ineligibility for the refund.

2. The Asstt. Commissioner of Customs held that the petitioner could not prove its entitlement to CENVAT credit, leading to the rejection of the refund claim. The petitioner relied on the Supreme Court's ruling in SRF Ltd. vs. Commissioner of Customs, Chennai and this Court's order in Micromax Informatics Ltd. vs. UOI and Ors. to support its case. The Court analyzed the principles applicable to additional customs duty under Section 3(1) of the Tariff Act, emphasizing the interpretation of 'like article' and the conditions for levy of additional duty.

3. The Court referred to previous judgments like Motiram Tolaram vs. Union of India and Hyderabad Industries vs. Union of India to establish the legal framework for determining the entitlement to additional customs duty. It highlighted the importance of the explanation to Section 3, which clarifies the conditions for levying additional duty on imported articles, even if a like article is not produced or manufactured in India.

4. Drawing parallels with the case of Micromax Informatics Ltd., the Court found the claim in the present case to be identical. Despite the petitioner's inability to claim CENVAT credit as an importer, the Court concluded that the claim for the difference between excess duty paid and additional customs duty under Notification No. 12/2012-CE should succeed based on the law laid down by the Supreme Court in SRF Ltd.

5. Applying the legal principles established in SRF Ltd., the Court directed the respondents to process the petitioner's refund claim and issue appropriate orders. The Court emphasized the submission of supporting certificates, such as a Chartered Accountant's clarification, to demonstrate that the benefit sought was not passed on to customers. The respondents were instructed to pay the refund amount with applicable interest within three weeks from the date of the judgment, thereby allowing the writ petition in favor of the petitioner.