2011 (8) TMI 799 - AT - Customs

Refund - Assessee is a 100% EOU had effected DTA sales of tea bags during the period 1-3-2000 to 30-6-2000 by short payment of customs duty and without payment of Special Additional Duty - Held that the revenue authorities have not issued any demand notice under Section 28 or under any other provisions. If no provisions are invoked for the demand of duty, any amount paid by the appellant needs to be refunded back to him if such amount is not due - Decided in favor of the assessee

Summary

Issues:
1. Refund claim filed by the respondent.
2. Time-bar for raising demands.
3. Payment of Special Additional Duty (SAD) by the respondent.
4. Applicability of Section 11A of the Customs Act, 1962.
5. Protest by the assessee regarding payment.
6. Decision of the Commissioner (Appeals) on time-bar issue.
7. Challenge to the issue of time-bar.
8. Eligibility for refund.

Analysis:
The appeal was filed by the revenue against the order-in-appeal that set aside the order-in-original but rejected the refund claim filed by the respondent, a 100% EOU. The respondent had effected DTA sales of tea bags during a specific period without paying Special Additional Duty (SAD) due to short payment of customs duty. The revenue contended that SAD was required to be paid as per the Finance Act, 2000. The department informed the respondent about the short levy, leading to a remittance of the differential customs duty but a dispute over the SAD payment ensued. The Tribunal remanded the matter to the Original Authority to examine the refund claim specifically on the limited question of time-bar as per Section 11A of the Customs Act, 1962.

The Original Authority rejected the refund claim again, stating that time-barred demands paid voluntarily need not be refunded. The Commissioner (Appeals) set aside the order-in-original and allowed the refund claim. The grounds of appeal raised by the revenue included arguments on the absence of formal demand under Section 28 of the Customs Act, voluntary payment by the importer, and the lack of protest by the department for refund on the time-bar issue. The Commissioner (Appeals) found in favor of the respondent, citing the delay in issuing the demand notice as a reason for the refund eligibility.

The Commissioner's decision was based on the absence of a formal demand notice for duty payment and the lack of finalization of the amount due from the assessee. The judgment highlighted that without invoking specific provisions for duty demand, any amount paid by the appellant should be refunded if not legally due. The absence of a duty demand notice under Section 28 or other provisions led to the conclusion that the amount paid without such notice should be refunded. The decision emphasized the legal and proper nature of the Commissioner's findings, ultimately rejecting the revenue's appeal.