2016 (9) TMI 24 - AT - Customs

Withholding of Refund of custom duty paid under protest Board s Circular No. 572/9/2001-CX dt.22.02.2001 as amended by 695/11/2003-CX dt. 24.2.2003 - re-assessment of the bill of entry Held that - when the order confirming the duty has been set aside and appeal of the appellant has been allowed, there is no need of re-assessment of Bill of Entries because the assessment attained finality at least for the time being in terms of this Tribunal s order dt. 14.5.2013. In absence of any stay order by the High Court / Supreme Court, refund cannot be withholded refund to be made.

Summary

Issues:
1. Direction for implementation of Final Order passed by the Tribunal.
2. Return of bank guarantee and grant of refund of Customs duty.
3. Delay in processing refund by the Revenue.
4. Interpretation of Board Circular regarding consequential refund.

Analysis:
1. The applicant filed a miscellaneous application seeking direction for the implementation of the Final Order dated 14.5.2013 passed by the Tribunal, which set aside the order of the Commissioner (Appeals) and allowed the appeal of the appellant. The applicant requested the return of the bank guarantee and a refund of ?1,94,05,594 being the Customs duty already paid under protest on the loaded value.

2. The applicant's counsel confirmed that the bank guarantee had been returned by the department, so that aspect was not in contention. However, regarding the refund, the counsel argued that more than three years had passed since the Tribunal's order, and the department had neither obtained a stay nor processed the refund. The counsel urged the Tribunal to direct the department to grant the refund.

3. The Revenue, represented by the Assistant Commissioner, stated that the matter was under process for re-assessment and re-determination of the differential duty/refund amount, as per a letter dated 8.7.2016 issued by the Assistant Commissioner of Customs.

4. The Tribunal considered the arguments from both sides and noted that over three years had passed since the Tribunal's order without any stay obtained by the Revenue. Referring to Board Circular No. 572/9/2001-CX, the Tribunal emphasized that if the department fails to obtain a stay within three months, the consequential refund should be granted. The Tribunal disagreed with the reason provided by the department for the delay, stating that there was no need for re-assessment of Bill of Entries since the duty confirmation order had been set aside. The Tribunal directed the Commissioner/Assistant Commissioner to process the refund promptly in accordance with the law, as there was no stay order from the higher courts. The miscellaneous application was disposed of accordingly.