2018 (10) TMI 1579 - HC - Customs

Refund claim - time limitation - section 27(1) of the Customs Act, 1962 - revenue submitted that amount paid as anti-deumping duty and not as pre-deposit - Held that - CBEC Circular dated 08.12.2004 states that pre-deposit amount must be returned within three months of the date of the order passed by the Appellate Tribunal or the Court unless stay is granted against such order. It was held that, it was the duty of the department to refund such amount. The show-cause notice issued for rejecting the assessee s application for returning the amount itself records this basic facts. Particularly, the amount in question was deposited by way of pre-deposit pending investigation - appeal dismissed.

Summary

Issues:
1. Whether the refund claim filed after the expiry of one year invoking section 27(1) of the Customs Act, 1962 can be considered time-barred?
2. Whether the refund claim can be allowed when the amount paid was as anti-dumping duty and not as a pre-deposit?

Analysis:

Issue 1:
The Department filed an appeal challenging the Customs, Excise and Service Tax Appellate Tribunal's judgment. The respondent-assessee had made a pre-deposit of &8377; 25 lacs during an investigation of evasion of anti-dumping duty. The Commissioner of Customs dropped the charges against the assessee but appropriated the deposited amount against the duty liability of another individual. The Tribunal held that the limitation under section 11B of the Central Excise Act would not apply since it was not a collection of tax but an amount collected during the investigation process. The Tribunal relied on the decision of Punjab and Haryana High Court and a circular of CBEC, stating that the pre-deposit amount must be returned within three months of the appellate tribunal's order unless a stay is granted. The Tribunal concluded that it was the duty of the department to refund the amount. The show-cause notice also confirmed that the amount was deposited as a pre-deposit pending investigation.

Issue 2:
The Tribunal's decision was based on the premise that the amount in question was not a tax collection but a deposit made during the investigation. As per the circular of CBEC, the pre-deposit amount should be refunded within three months of the appellate tribunal's order unless a stay is granted. The Tribunal's reliance on the decision of the Punjab and Haryana High Court further supported the view that the department was obligated to refund the amount. Consequently, the Tribunal allowed the refund claim, emphasizing the nature of the amount paid as anti-dumping duty and not as a pre-deposit.

In conclusion, the High Court dismissed the Tax Appeal, affirming the Tribunal's decision that the refund claim was valid despite being filed after the expiration of one year and that the amount paid was as anti-dumping duty, warranting a refund.