2017 (5) TMI 1124 - AT - Customs

Refund of CVD - rejection on the ground that the assessment order has not been challenged - Held that - It is to be noted that at the time of filing Bill of Entry and its assessment, there was no lis between the Revenue and the importer regarding the eligibility of concession as per the notification. The lis has arisen only with the filing of refund claim by the respondent - refund allowed - appeal dismissed - decided against Revenue.

Summary

Issues:
- Claim for refund of excess CVD paid due to concessional rate eligibility.
- Entitlement to claim refund without challenging the assessment order.
- Interpretation of relevant legal provisions and notifications.
- Applicability of decisions from different High Courts and Supreme Court.
- Consideration of cases where no lis existed at the time of original assessment.

Analysis:
1. Claim for refund of excess CVD paid: The case involved the import of sports goods where the respondents paid CVD at 12% but later realized they were eligible for a concessional rate of 6% as per a specific Customs Notification. The respondents filed a refund claim for the excess CVD paid. The original authority rejected the refund claim, citing the need to challenge the assessment order. However, the Commissioner (Appeals) allowed the refund claim, leading to the Revenue's appeal.

2. Entitlement to claim refund without challenging assessment: The key contention was whether the importer could claim a refund without challenging the assessment order. The learned DR argued that without challenging the assessment, a refund claim would not be valid, citing relevant case law. The Counsel for the respondent, on the other hand, supported the refund claim, referring to decisions from the Hon'ble Delhi High Court that emphasized the right to claim a refund even without challenging the assessment order.

3. Interpretation of legal provisions and notifications: The Tribunal analyzed the legal provisions and notifications related to the case, particularly focusing on the Customs Notification providing for a concessional rate of CVD. The Tribunal considered the implications of not claiming the benefit of the concessional rate at the time of assessment and the subsequent filing of a refund claim upon realizing the eligibility for the concession.

4. Applicability of decisions from different High Courts and Supreme Court: The case involved contrasting decisions from different High Courts and the Supreme Court regarding the eligibility to claim a refund without challenging the assessment order. The Tribunal specifically examined the decisions of the Hon'ble Delhi High Court and how they differed from other judicial precedents cited by both parties.

5. Consideration of cases where no lis existed at the time of original assessment: The Tribunal highlighted that there was no dispute (lis) between the Revenue and the importer regarding the eligibility for the concessional rate at the time of the original assessment. The issue of eligibility arose only when the refund claim was filed. The Tribunal relied on the decisions of the Hon'ble Delhi High Court to uphold the refund claim, emphasizing that when no dispute existed at the time of the original assessment, the importer could claim a refund based on subsequent eligibility realizations.