2017 (4) TMI 634 - AT - Customs

Refund claim - excess duty paid at 5% instead of 1% - denial on the ground that in terms of Section 149 of the CA, 1962, the amendment in the Bill of Entry is not permissible as the documents on which the refund claim has been filed was not available with the appellant at the time of clearance of the goods - Held that - there is no issue of interpretation of notification and the matter is based on fact finding. If the appellant has produced the certificate of country of origin then there is no dispute between the parties. The appellant is required to pay Basic Customs duty at the rate of 1% Adv. and excess duty paid by the appellant is to be refunded. Whether the refund claim filed by the appellant can be rejected on the ground that, at the time of clearance of the goods, certificate as prescribed in format was not produced by the appellant? - Held that - The invoices shows the country of origin as North Korea and the certificate produced at the time of clearance was not in prescribed format but as per the agreement, for claiming preferential tariff treatment, certificate of origin can be produced later-on but with the words ISSUED RETROSPECTIVELY in remarks column. The appellant has produced the said certificate and the same has not been disputed. The appellant has produced the certificate of origin in the prescribed format later on, is not disputed. It is also not disputed that in the bill of entry, the country of original is North Korea. In view of the fact that the goods are of Korean origin, the appellant is liable to pay Basic Customs duty at the rate of 1% and have paid the excess duty. Therefore, the appellant is entitled for refund of claim of excess duty paid by them. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Refund claim rejection of excess duty paid.
2. Interpretation of Notification No. 152/2009-Cus dated 31.12.2009.
3. Entitlement to refund claim based on certificate of origin.
4. Rejection of refund claim due to absence of prescribed format certificate at clearance.

Issue 1: Refund claim rejection of excess duty paid:
The appellant appealed against the rejection of their refund claim for excess duty paid. The dispute arose from the clearance of Special High Grade Lead KZ brand goods for home consumption, where duty was paid at 5% instead of the prescribed 1% under Notification No. 152/2009-Cus. The appellant's claim was based on obtaining a certificate of origin under the Customs Tariff Rules. The adjudicating authority and the Commissioner (Appeals) rejected the claim, leading to the appeal.

Issue 2: Interpretation of Notification No. 152/2009-Cus dated 31.12.2009:
The appellant argued that the refund claim should not be denied based on the interpretation of the notification. The Division Bench was suggested for a hearing due to the notification's interpretation complexity. However, the presiding member found the issue to be straightforward, focusing on whether the appellant was entitled to the refund claim as per the notification's terms, rather than a complex interpretation.

Issue 3: Entitlement to refund claim based on certificate of origin:
The appellant contended that despite not having the prescribed format certificate at the time of clearance, the certificate could be issued later and applied retrospectively as per the agreement. The member acknowledged the appellant's submission and emphasized that the appellant, upon producing the correct certificate of origin, was entitled to a refund of the excess duty paid.

Issue 4: Rejection of refund claim due to absence of prescribed format certificate at clearance:
The opposing argument highlighted the absence of the prescribed format certificate at the time of clearance, leading to the rejection of the refund claim. However, the member noted that the appellant later produced the correct certificate, which was not disputed. The crucial point was that the goods were of Korean origin, requiring duty payment at 1%, not 5%. Therefore, the appellant was deemed entitled to a refund of the excess duty paid.

In conclusion, the impugned order was set aside, and the appeal was allowed with any consequential relief. The member's decision was based on the appellant's entitlement to the refund claim upon producing the correct certificate of origin, as per the terms of Notification No. 152/2009-Cus dated 31.12.2009.