2012 (11) TMI 829 - AT - Customs

Refund - method of calculation of the refund - Notification No. 94/96-Cus. - exemption of the goods to the extent of drawback received. - Revenue has taken the stand that while sanctioning the refund, benefit of CENVAT credit that may be available to the appellant has to be deducted from the amount of refund payable to the appellant Held that - Deduction of CENVAT credit amount by sanctioning refund does not appear to be correct since no provision of law where the future CENVAT credit admissible can be taken into account while calculating the customs duty payable under Notification No. 94/96-Cus - appellant has made out a prima facie case in their favour - requirement of pre-deposit is waived

Summary

Issues:
1. Eligibility for exemption under Notification No. 94/96-Cus.
2. Calculation of refund and deduction of CENVAT credit.
3. Authority of officers in deducting CENVAT credit.
4. Correction of calculation error by the Commissioner (Appeals).

Eligibility for exemption under Notification No. 94/96-Cus:
The appellant imported a machine, availed drawback upon re-exporting due to damage, and later re-imported it. A dispute arose regarding the appellant's eligibility for exemption under Notification No. 94/96-Cus. The appellant paid full duty, cleared the goods, and filed a refund claim. The Tribunal previously settled the eligibility issue.

Calculation of refund and deduction of CENVAT credit:
The current issue concerns the method of calculating the refund for the appellant. The Revenue argued that CENVAT credit should be deducted from the refund amount. Initially, a refund of approximately Rs. 82.6 lakhs was sanctioned, but on appeal by the Revenue, an additional payment of around 40.5 lakhs was demanded.

Authority of officers in deducting CENVAT credit:
The appellant contended that officers exceeded their authority by deducting potential CENVAT credit. They argued that eligibility for CENVAT credit should not affect duty calculation during customs clearance. The original authority's duty calculation during re-importation was deemed correct.

Correction of calculation error by the Commissioner (Appeals):
The department's representative stated that the Commissioner (Appeals) rectified a calculation error by the original adjudicating authority. The original authority considered CENVAT credit but miscalculated the amount. The Tribunal found no legal provision allowing future CENVAT credit deduction while calculating customs duty under Notification No. 94/96-Cus. Consequently, the appellant's argument was upheld, and the pre-deposit requirement was waived with a stay on recovery during the appeal's pendency.