2017 (5) TMI 1556 - AT - Customs

Refund of SAD - rejection following para 3 of Circular No. 23/2010-Cus., dated 29 July, 2010, where it was clarified that when assessment is provisional, the date of payment of duty would be relevant for refund of SAD and not the date of finalization of assessment as clarified in the earlier Circular No. 93/2008, dated 1 August, 2008 - Held that - the Commissioner (Appeals) has rightly observed that there were divergent views by the Board in Circulars dated 1-8-2008 and 29-7-2010 - The period of dispute under the present case is covered by the Circular dated 1-8-2008 provides that the relevant date is from the date of finalization of assessment. Refund allowed - appeal dismissed - decided against Revenue.

Summary

Issues:

1. Refund claim rejection based on Circular No. 23/2010-Cus.
2. Applicability of Circulars dated 1-8-2008 and 29-7-2010.
3. Interpretation of relevant date for refund claims.
4. Prospective vs. retrospective application of Circulars.
5. Divergent practices in field formation.

Analysis:

Issue 1: The appellant filed a refund claim for 4% SAD of customs, which was rejected by the adjudicating authority based on Circular No. 23/2010-Cus., stating that the date of payment of duty is relevant for refund, not the date of finalization of assessment.

Issue 2: The Commissioner (Appeals) set aside the adjudication order, highlighting the conflicting views in Circulars dated 1-8-2008 and 29-7-2010. The Circular dated 1-8-2008 specified the relevant date as the finalization of assessment, whereas Circular No. 23/2010-Cus. emphasized the date of payment of duty on provisional assessment.

Issue 3: The Commissioner (Appeals) referred to Circular No. 6/2008, which did not clarify whether the date of payment of duty should be final or provisional. The appellant believed the final assessment date was relevant for old cases from 2007-09. The Hon'ble CESTAT, New Delhi, in a similar case, ruled that refund claims for provisional assessments should be filed within one year of finalization, not the payment date.

Issue 4: The Tribunal considered the application of Circular No. 23/2010-Cus. prospectively, not retrospectively, in line with the principle that beneficial circulars apply retrospectively and oppressive ones apply prospectively.

Issue 5: The Tribunal upheld the Commissioner (Appeals)'s decision, emphasizing the need for consistency in interpreting Circulars and resolving divergent practices in field formations. The period of dispute fell under the Circular dated 1-8-2008, which deemed the finalization of assessment as the relevant date for refund claims.

In conclusion, the Tribunal dismissed the Revenue's appeal, affirming the Commissioner (Appeals)'s order based on the interpretation of Circulars, the relevant date for refund claims, and the need for consistency in applying circulars to avoid divergent practices in the field.