2019 (2) TMI 98 - AT - Customs

Refund of Duty - verification of Country of Origin (COO) after clearance of goods - denial on the ground that appellants had not challenged the assessment and that unless original order is challenged or modified, the claim for refund does not arise - Held that - The appellants need not have challenged the assessment to enable them to file the refund claim. The ratio laid down in Priya Blue Industries 2004 (9) TMI 105 - SUPREME COURT OF INDIA will not apply to the amended provisions of Section 27 (1) of the Customs Act, 1962. In the said case, there was no assessment order as duty was paid under protest which implies there was a dispute - In the appellant s case, there is no dispute and duty was paid under mistake. A perusal of the Certificate of Origin filed by the appellants in page 133 of the appeal book clearly certifies that the goods were produced in the Republic of Korea and they comply with the origin requirements specified for these goods in the Korea - India Comprehensive Economic Partnership Agreement. It is also noticed that the said Country of Origin has been issued on 24.02.2014 by the Director, Korea Chamber of Commerce & Industry. Further the goods have been loaded at Inchon Port as per Bill of Lading dt. 20.02.2014 - the matter back to the original authority to re-examine the issue only from the aspect of whether documents and certificates submitted by the appellants are adequate to satisfy that the imported goods were indeed originating from the Republic of Korea and therefore qualifying for exemption benefit under N/N. 54/2013-Cus. Appeal allowed by way of remand.

Summary

Issues:
Refund claim rejection based on assessment challenge requirement under Customs Act, 1962; Applicability of amended Section 27 (1) of the Customs Act, 1962; Clerical error in availing concessional basic duty; Verification of Country of Origin Certificate; Remand for re-examination by original authority.

Analysis:
The case involved a refund claim rejection due to the original authority's stance that challenging the assessment was a prerequisite for a refund claim, as per the Customs Act, 1962. The appellant argued that the amendment to Section 27 (1) in April 2011 eliminated the need for challenging the assessment to file a refund claim. The appellant cited case laws to support this argument, emphasizing that no dispute existed during duty payment. The tribunal agreed, stating that the assessment challenge was unnecessary under the amended provision.

Another issue raised was a clerical error in availing concessional basic duty under a specific notification instead of full exemption available under another notification. The appellant contended that this error could be rectified by the Department under Section 154 of the Customs Act, 1962. Citing relevant case laws, the appellant argued that changes in notification numbers could be raised at the appeal stage, which the tribunal acknowledged as a legal question.

The verification of the Country of Origin Certificate was also disputed. The appellant submitted a certificate from the Korean Chamber of Commerce, certifying the goods' origin from the Republic of Korea. The tribunal noted the certificate's compliance with the origin requirements specified in the Korea-India Comprehensive Economic Partnership Agreement. It directed the original authority to re-examine the documents to ensure the goods qualified for the exemption benefit under the relevant notification.

In conclusion, the tribunal remanded the matter to the original authority for re-examination solely on the adequacy of the documents and certificates submitted by the appellant to establish the goods' origin from the Republic of Korea. If satisfied, the original authority was instructed to decide the refund claim in accordance with the Customs Act, 1962. The appeal was allowed based on the remand for further assessment in light of the Country of Origin Certificate and related documentation.