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2017 (1) TMI 7 - AT - CustomsRefund claim of excess paid duty - imported goods, USB Modem - The imported goods were assessed under CTH 85176292 as free rate of duty. However, neither the respondent had claimed, nor the assessing authority had extended the benefit of nil rate of Excise Duty/CVD provided under the Notification No. 6/2006-CE dated 01.03.2006, as amended and also the benefit of exemption of Additional Duty of Customs of 4% provided under the Notification No. 20/2006-Cus., dated 01.03.2006, and excess duty paid by respondents. Held that - Section 27 ibid provides the modalities and procedures for claiming refund of Customs Duty. The said provision mandates that duty paid in pursuance of an order of assessment or borne by the importer, can claim the same as refund. In this case, an amount of ₹ 6,06,887/- towards excise duty / additional duty of customs was paid by the respondent, since the benefit provided under notifications dated 01.03.2006 was not claimed in the Bill of Entry. On the basis of information furnished by the respondent, since the Bill of Entry was assessed by the Customs Department and the assessed duty was paid by the respondent, it cannot be said that the duty was paid by the respondent in pursuance of an order of assessment. The case of the respondent falls under the second category i.e. borne by him contained in Section 27 ibid, according to which, since the duty incidence has been borne by the respondent, claiming of refund of such excess duty in terms of Section 27 ibid, in our view is in conformity with the statutory provisions. Appeal dismissed - decided against Revenue.
Issues involved:
1. Timeliness of filing the appeal before the Commissioner (Appeals). 2. Eligibility for refund of excess duty paid by the respondent. 3. Interpretation of Section 27 of the Customs Act regarding refund claims. Analysis: Issue 1: Timeliness of filing the appeal before the Commissioner (Appeals) The Revenue contended that the appeal filed by the respondent was time-barred under Section 128 of the Customs Act, 1962. However, the Tribunal found that the cause of action for filing the appeal arose from the decision conveyed in the letter dated 24.08.2011, which was within the stipulated time for filing an appeal. The Tribunal concluded that there was no delay in filing the appeal before the Commissioner (Appeals). Issue 2: Eligibility for refund of excess duty paid by the respondent The respondent had paid excess assessed duty on imported goods due to the non-consideration of duty exemptions at the time of assessment. The Commissioner (Appeals) allowed the refund claim of the excess duty paid, subject to verification of unjust enrichment and other statutory aspects. The Tribunal upheld this decision, stating that the duty incidence was borne by the respondent, making them eligible for a refund under Section 27 of the Customs Act. Issue 3: Interpretation of Section 27 of the Customs Act regarding refund claims The Tribunal analyzed Section 27 of the Customs Act, which allows for the claiming of refunds of Customs Duty. It differentiated the present case from the precedent cited by the Revenue, emphasizing that the duty was paid by the respondent without an assessment order due to the non-consideration of duty exemptions. The Tribunal referred to a relevant judgment by the Delhi High Court, highlighting that duty borne by the importer can claim a refund under Section 27. Based on this interpretation, the Tribunal dismissed the appeal filed by the Revenue, affirming the respondent's eligibility for the refund. In conclusion, the Tribunal upheld the Commissioner (Appeals) order, allowing the refund claim of the excess duty paid by the respondent and dismissing the appeal filed by the Revenue. The judgment highlighted the statutory provisions under Section 27 of the Customs Act and the eligibility criteria for claiming refunds in cases where duty incidence is borne by the importer.
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