2019 (5) TMI 1624 - AT - Customs

Refund claim - Benefit of Concessional rate of CVD - Sl. No 263A of Notification no. 12/2012-CE dated 17.03.2012 as amended by N/N. 04/2014-CE dated 17.02.2014 - import of mobile phone parts, components and accessories - whether re-assessed bills of entry are required in respect of the refund claim filed under Section 27 of the Customs Act, 1962? HELD THAT - The requirement to furnish re-assessed bills of entry existed in the erstwhile Section 27 as it existed prior to 08.04.2011 before the introduction of self assessment - A perusal of the erstwhile Section 27 of the Customs Act would provide that refund was admissible in respect of duty which was paid in pursuance of the order of assessment. Thus, if there was an order of assessment by an officer, the same was subject to challenge by way of an appeal subsequent to which refund would accrue to an assessee in light of a favourable appellate order. As per the existing provisions of Section 27 of the Customs Act, it is not mandatory that a claim for refund of duty be made only against an order of assessment. This is because where there is self assessment, the question of any assessment order does not arise. So long as the assessee is able to show that the duty is paid by him or borne by him, he is entitled to file a claim for refund. Thus, if duty has been paid under self assessment basis, a claim for refund can be made without filing any appeal against the bill of entry. The Hon ble Delhi High Court in the case of AMAN MEDICAL PRODUCTS LTD. VERSUS COMMISSIONER OF CUSTOMS, DELHI 2009 (9) TMI 41 - DELHI HIGH COURT held that a claim for refund would be maintainable in absence of an Appeal against bills of entry where the duty was paid inadvertently. The Apex Court in the case of M/S SRF LTD., M/S ITC LTD VERSUS COMMISSIONER OF CUSTOMS, CHENNAI, COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) , NEW DELHI 2015 (4) TMI 561 - SUPREME COURT has held that the exemption from payment of CVD shall be available even in respect of imported goods for the reason that no question of availing cenvat credit under the Cenvat Credit Rules, 2002 arises where inputs are produced in a country other than India. Thus, the condition must be considered to be fulfilled. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Refund claims for excess duty paid under concessional rate of CVD.
2. Requirement of reassessed bills of entry for refund claims under Section 27 of the Customs Act, 1962.

Analysis:
1. The respondents filed refund claims for excess duty paid against bills of entries, seeking the benefit of concessional CVD rate under specific notifications. The department proposed rejection due to lack of reassessment of bills, leading to appeal and subsequent remand by Commissioner(Appeals). However, a review directed an appeal against the remand order, bringing the matter before the Tribunal.

2. The core issue revolved around the necessity of reassessed bills of entry for refund claims under Section 27 of the Customs Act. The erstwhile Section 27 required duty payment in pursuance of an assessment order for refund eligibility. Post the 2011 amendment, self-assessment altered this requirement. The Tribunal cited precedents like Aman Medical Products Ltd. case to support the view that a refund claim can be valid even without an appeal against the bill of entry, especially in cases of inadvertent duty payment.

3. The appellant contended that post-2011, refund provisions changed, emphasizing the need for an assessment order for refund consideration. However, the respondent argued citing the SRF Ltd. case where the Supreme Court interpreted exemption conditions favorably for imported goods, even without fulfilling certain criteria related to credit rules. This interpretation was upheld in subsequent judgments and review petitions.

4. The Tribunal analyzed the legal basis for refund claims, highlighting the evolution of Section 27 and the impact of self-assessment on refund eligibility. Citing relevant case laws and judgments, the Tribunal concluded that the impugned Order-in-Appeal was legally sound, dismissing the Revenue's appeal for lack of merit.

By considering the legislative changes, judicial interpretations, and precedents, the Tribunal upheld the refund claims, emphasizing the applicability of exemptions to imported goods and the revised refund provisions post the 2011 amendment to Section 27 of the Customs Act.