2011 (8) TMI 939 - AT - Customs

Import of aluminium foils - Goverment imposed provisional safeguard duty - re-assessment of provisional duty under Notification 71/2009 - pending assessment appeal was filed - Commissioner set aside assessment and ordered refund of duty - Held That - When safeguard duty on provisional basis assessment also provisional - arguments of respondent no need for finalization of assessment does not stand. Further CA certificate are not conclusive to state that duty has not been passed invoices required. Appeals pending assessment cannot be filed before Commissioner. Case referred back.

Summary

Issues:
Appeals against order-in-appeal related to imposition of provisional safeguard duty on imported aluminum foils from China; Discrepancy in number of appeals filed and bills of entry cited; Validity of exclusion of certain aluminum foils from safeguard duty; Premature decision by Commissioner (Appeals) before reassessment; Requirement of end-use certificates for refund; Validity of provisional assessment; Sufficiency of evidence for duty incidence not passed on.

Analysis:
1. The appeals were filed against an order-in-appeal related to the imposition of provisional safeguard duty on imported aluminum foils from China. The importer sought reassessment and refund based on subsequent notifications imposing safeguard duty. There was a discrepancy in the number of appeals filed and bills of entry cited, leading to the withdrawal of one appeal. The issue revolved around the exclusion of certain aluminum foils from safeguard duty and the premature decision by the Commissioner (Appeals) before reassessment was completed.

2. The central issue was the validity of the exclusion of aluminum foils from safeguard duty under specific notifications. The importer claimed to meet the end-use criteria specified in the notification and provided certificates from beer manufacturers. However, the Commissioner (Appeals) needed to ascertain if the imported goods were solely used in the beer bottling industry to qualify for the exclusion from safeguard duty.

3. The discussion also focused on the validity of provisional assessment and the sufficiency of evidence regarding the duty incidence not being passed on to customers. The Commissioner (Appeals) had relied on a Chartered Accountant's certificate, but it was noted that invoices issued by the importer to buyers should also be considered to determine if the duty burden was transferred.

4. The Tribunal found the Commissioner (Appeals) decision premature and not in accordance with the law. The case was remanded back to the original adjudicating authority to decide on the importer's refund claim after considering all evidence, including invoices and end-use certificates. The importer was granted the opportunity to present additional evidence before a final decision was made.

5. Ultimately, the appeals were allowed by way of remand, emphasizing the importance of a thorough assessment and proper evidence presentation in determining the eligibility for a refund of provisional safeguard duty paid by the importer.