2019 (10) TMI 1054 - AT - Customs

Refund of Safeguard Duty - proviso to Section 8C (2) of the Tariff Act - the amount that was earlier deposited by the appellant towards provisional Safeguard Duty imposed by Notification dated 19 June, 2009 - appellant claims that the goods imported by it during the relevant period fell under the excluded category (f) of B in the Notification dated 19 June, 2009 and, therefore, was exempted from levy of Safeguard Duty and therefore claimed refund of duty. HELD THAT - Section 8C(2) provides for refund of provisional Safeguard Duty so collected, if the Notification issued after final determination exempts payment of duty. All that has to be seen, therefore, is whether the product exported by the appellant is exempted under (f) of B in the Notification dated 19 June, 2009. It is a fact that the appellant did not specifically describe the product that was imported from China in the bill of entry and only referred to the bill of lading and the invoices. Learned Counsel for the appellant has submitted that it was not considered necessary by the appellant at that time to specifically describe the product because provisional Safeguard Duty under the Notification dated 23 March, 2009 was levied at the rate of 35% on all goods falling under Heading No.7607 (Aluminium foil) - The order passed by the Deputy Commissioner (Refund) mentions that it is not necessary to examine the technical specification provided by the appellant for the reason that the goods had been cleared from Customs and were not available for cross checking the authenticity of the technical specification. It has also been observed that there was no documentary evidence to verify the technical specification prescribed in the Notification at the time of import, particularly when the thickness specified was an important aspect to be considered. It is seen from the order of the Commissioner (Appeals) that the supporting documents have been examined but no specific reasons have been assigned as to why the chemical property do not satisfy the requirement of (f) of B of the Notification dated 19 June, 2009 and only a bald statement has been made. The supporting documents filed by the appellant do require an examination so that a finding can be arrived at as to whether the product imported by the appellant would fall under the exemption specified in (f) of B of the Notification dated 19 June, 2009 - It is, therefore, considered necessary to remand the matter to the Commissioner (Appeals) to specifically record a finding as to whether the product imported by the appellant, for which the appellant claims who have paid Safeguard Duty, would fall under the exempted category specified in the Notification dated 19 June, 2009. The matter is remitted to the Commissioner (Appeals) who shall record an independent finding on the issue without being influenced by any of the observations made in this order - Appeal allowed by way of remand.

Summary

Issues Involved:
1. Rejection of refund claim for provisional Safeguard Duty.
2. Applicability of exemption under Notification dated 19 June, 2009.
3. Correlation between imported goods and technical specifications.

Issue-wise Detailed Analysis:

1. Rejection of Refund Claim for Provisional Safeguard Duty:
The appellant, engaged in manufacturing air conditioners, imported Aluminium foil and paid provisional Safeguard Duty as per Notification dated 23 March, 2009. The Deputy Commissioner (Refunds) rejected the appellant's refund claim of ?2,33,19,755/-, and this decision was upheld by the Commissioner (Appeals). The appellant argued that the final Notification dated 19 June, 2009, which was retroactively effective from 23 March, 2009, exempted the imported Aluminium foil from Safeguard Duty, thus entitling them to a refund per Section 8C(2) of the Customs Excise Tariff Act, 1975. However, both authorities dismissed the claim due to insufficient evidence correlating the imported goods with the exempted category under the Notification.

2. Applicability of Exemption under Notification Dated 19 June, 2009:
The Notification dated 19 June, 2009, imposed definitive Safeguard Duty but exempted specific categories, including Aluminium-Manganese-Silicon based alloys used in heat exchangers. The appellant claimed their imports fell under this exemption. However, the Deputy Commissioner (Refunds) and the Commissioner (Appeals) found the appellant's documentation inadequate to substantiate this claim. The appellant's bills of entry did not specifically describe the imported goods, and the supporting documents from the supplier lacked correlation with the bills of entry regarding the required technical specifications.

3. Correlation Between Imported Goods and Technical Specifications:
The appellant provided technical specifications and drawings from their supplier and LG Korea, asserting that the imported Aluminium foil met the criteria for exemption. Despite this, the authorities found the evidence insufficient. The Deputy Commissioner (Refunds) noted the absence of documentary proof at the time of import and the inability to verify the technical specifications post-clearance. The Commissioner (Appeals) echoed this, stating the supporting documents did not correlate with the bills of entry regarding the chemical and physical properties necessary for exemption.

Judgment:
The Tribunal found the Commissioner (Appeals) failed to provide specific reasons why the appellant's documents did not meet the exemption criteria. It emphasized the need for a detailed examination of the supporting documents to determine if the imported goods fell under the exempted category specified in the Notification dated 19 June, 2009. Consequently, the Tribunal set aside the Commissioner (Appeals)'s order and remanded the matter for a fresh decision, instructing the Commissioner (Appeals) to independently verify the appellant's claim without being influenced by previous observations. The appeal was allowed to the extent of this remand.

Conclusion:
The Tribunal directed a re-evaluation of the appellant's refund claim, focusing on whether the imported Aluminium foil met the exemption criteria under the Notification dated 19 June, 2009. The Commissioner (Appeals) must provide a clear, independent finding based on a thorough examination of the appellant's supporting documents.