2019 (4) TMI 446 - AT - Customs

Refund of CVD - appellants have preferred refund claims for ₹ 2,24,56,116/- with retrospective effect from 1st March 2006 on the grounds that Customs Department has been erroneously charging CVD at 10% AD valorem instead of specific rate of ₹ 30 per SQM in spite of the Board clarification dated 16.03.2012 - rejection of refund claim on account of re-assessment, limitation and unjust enrichment and also the classification. Held that - The appellant has relied upon various decisions to prove that duty burden has not been passed on to the buyer and has been borne by themselves. For this also, the appellant relied upon the various decisions but the same were not considered by the Commissioner (A). In view of all these circumstances, the impugned order is not sustainable in law and therefore the same is set aside - further matter remanded to the Commissioner (A) for the purpose of examining the issue of limitation and unjust enrichment. Appeal allowed by way of remand.

Summary

Issues:
Appeal against Commissioner (A) order upholding Order-in-Original and rejecting appellant's claim for refund.

Analysis:
The appellant imported Marble Slabs under Chapter Heading 68022190 and paid duties at merit rates, including CVD at 10% Ad valorem. Notification No. 12/2012-CE dated 17.03.2012 prescribed CVD at ?30 per SQM for goods under CTH 68022190. The Board clarified the inclusion of CETH 68022190 in the notification. The appellant sought a refund of ?2,24,56,116/- from 1st March 2006 due to erroneous CVD charges. The Order-in-Original rejected the claim citing re-assessment, limitation, unjust enrichment, and classification issues. The Commissioner upheld the rejection on limitation and unjust enrichment but allowed it on assessment not being challenged. The Commissioner held that the notification had no retrospective application unless specified.

The appellant argued that the impugned order did not appreciate the facts and law properly. They contended that CVD should have been levied at ?30 per SQM post-amendment, citing relevant circulars and past decisions. The Commissioner's decision was challenged based on previous CESTAT rulings favoring the appellant's position. The appellant also highlighted instances where similar benefits were granted in their favor by the Commissioner of Central Excise, Noida, and CESTAT, Chennai Bench.

The Tribunal found the appellant entitled to the benefit of Notification No. 04/2006-CE retrospectively based on past decisions. The issue of limitation was not properly considered by the Commissioner. The Tribunal noted that the burden of excess duty was borne by the appellant, not passed on to the buyer, contrary to the Commissioner's findings. The matter was remanded to the Commissioner for reevaluation on limitation and unjust enrichment, with directions to consider all submissions and evidence provided by the appellant. The Tribunal allowed the appeal by way of remand, setting aside the impugned order.

In conclusion, the Tribunal found in favor of the appellant on the issues of benefit entitlement, limitation, and unjust enrichment. The matter was remanded for further examination by the Commissioner to ensure fair consideration of all aspects and evidence presented by the appellant.