2018 (4) TMI 597 - AT - Customs

Refund of anti-dumping duty - duty paid under protest - rejection on the ground that the assessment itself had not been challenged before the appellate authority - Held that - the refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act 1962 and which claim will fall under clause (ii) of sub-section (1) of Section 27. Matter remanded to the original authority viz Deputy Commissioner of Customs (Refund) to examine the merits of the matter - appeal allowed by way of remand.

Summary

Issues:
Refund claim rejection on anti-dumping duty paid on PVC flex film; Maintainability of refund claim under Section 27 of Customs Act; Applicability of assessment order for filing refund claim.

Analysis:
1. Refund Claim Rejection: The appellant, M/s Avery Dennison Pvt Ltd, filed a refund claim against the anti-dumping duty paid on PVC flex film imported, which they believed was not liable for such duty. The duty was paid under protest on imports between October 7, 2010, and October 23, 2010. The refund claim was rejected by the competent authority on the ground that the assessment itself had not been challenged before the appellate authority. The first appellate authority upheld this decision citing relevant Supreme Court judgments.

2. Maintainability of Refund Claim: The appellant argued that the refund claim was maintainable under Section 27 of the Customs Act, even without challenging the assessment order. They relied on various decisions to support their claim, emphasizing that the duty paid can also be "borne by him" as per the language of Section 27. The Hon'ble High Court of Delhi's decision in re Aman Medical Products Ltd was referenced to highlight that the duty can be paid without an order of assessment, allowing for a refund claim.

3. Applicability of Assessment Order: The Tribunal differentiated the present case from previous judgments where assessment orders were in dispute. They noted that in cases where there is no assessment order on dispute, the party can file a claim for refund under Section 27. The Tribunal held that the judgments cited by the first appellate authority regarding the importance of challenging assessment orders do not apply when there is no assessment order under dispute.

4. Judgment: The Tribunal concluded that the refund claim of the appellant was maintainable under Section 27 of the Customs Act, and the non-filing of an appeal against the assessed bill of entry does not deprive the appellant of filing a refund claim. The impugned order was set aside, and the appeal was allowed, remanding the matter to the original authority for further examination in accordance with the law.

By analyzing the issues of refund claim rejection, maintainability under Section 27, and the applicability of assessment orders, the Tribunal provided a detailed judgment allowing the appellant's appeal and setting aside the previous decisions based on the specific circumstances of the case.