2021 (4) TMI 303 - AT - Customs

Refund of Additional Customs Duty - refund rejected on the ground that the claimant is not the importer of the goods - benefit of N/N. 102/2007-Cus. - HELD THAT - It can be seen that it is for the importer to file refund claim. The definition of importer as it stood prior to 2017 has been referred to by Ld. Counsel for appellant. From the definition, it can be seen that it is an inclusive definition wherein the importer includes any owner or person holding himself out to be the importer. The appellant has entered into slump sale agreement with Doosan Infracore India Pvt.Ltd. on 1.4.2015 for sale of Excavator Division. In the agreement it is stated that all assets and properties of the seller owned or used by the seller in connection with business would fall within acquired assets by the appellant herein. It is also stated that all tax benefits / receivables relating to inventory being transferred including but not limited to refund of SAD would be acquired assets from seller to buyer. After the slump sale agreement of the excavator division, the appellant has become the owner of the imported goods or can be said to be in the shoes of a person holding himself out to be the importer. Though IEC of Doosan Infracore India Pvt.Ltd. was used for clearance of the goods, it cannot be said that appellant is a total stranger to Doosan Infracore India Pvt.Ltd. So also, it cannot be said that the appellant does not have any ownership over the goods. The agreement is sufficient evidence to satisfy that the ownership of the goods was transferred from Doosan Infracore India Pvt.Ltd. to the appellant herein - before the goods were cleared for home consumption as per slump sale agreement, the liability to pay all duties including SAD on the imported goods is on the appellant. Consequent to slump sale agreement, not only the liability to pay duty but also the right to claim SAD refund also is passed on to the appellant herein - sanction of refund to the appellant is legal and proper. In the present case, there is no misuse or abuse of IEC code and the appellant being the owner of the goods has used IEC code of Doosan Infracore India Pvt.Ltd. for clearing the goods - There is no violation of condition of Notification No.102/2007 so as to deny the refund of SAD as the appellant would fit into the definition of importer - Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Eligibility for refund of 4% Additional Customs duty as per Notification No.102/2007-Cus.
2. Interpretation of the term "importer" under Customs Act, 1962.
3. Ownership of imported goods in the context of a slump sale agreement.
4. Validity of using IEC code of another entity for clearance of goods.
5. Compliance with conditions stipulated in Notification No.102/2007-Cus. for refund.

Issue 1: Eligibility for refund of 4% Additional Customs duty:
The appellant filed refund applications seeking refund of 4% Additional Customs duty under Notification No.102/2007-Cus. The department raised concerns regarding the eligibility of the appellant for the refund due to discrepancies in the importer's name on Bills of Entry and sale invoices. A show cause notice was issued proposing recovery of the sanctioned refund. The original authority confirmed the demand, leading to the appeal before the Tribunal.

Issue 2: Interpretation of the term "importer" under Customs Act:
The appellant argued that despite not being the importer at the time of physical importation, they became the owner of the goods before clearance for home consumption due to a slump sale agreement. The definition of "importer" as per Customs Act, 1962 was discussed, emphasizing that it includes any person holding themselves out to be the importer post-importation but pre-clearance for home consumption.

Issue 3: Ownership of imported goods in the context of a slump sale agreement:
The Tribunal analyzed the slump sale agreement, which transferred all assets and liabilities of the Excavator Division, including the imported goods, to the appellant. It was established that the appellant became the rightful owner of the goods before clearance for home consumption, shifting the title of importer from the initial entity to the appellant.

Issue 4: Validity of using IEC code of another entity for clearance:
The department contended that the appellant misused the IEC code of the initial importer for clearance of goods, rendering them ineligible for the refund. However, the Tribunal found that the appellant, as the rightful owner, utilized the IEC code due to non-availability of their own code, which did not disqualify them from being considered the importer.

Issue 5: Compliance with conditions for refund under Notification No.102/2007-Cus.:
The Tribunal referred to the conditions in the notification, highlighting the requirement for the importer to file the refund claim. It was concluded that the appellant, having satisfied the conditions and being the rightful owner of the goods, was eligible for the refund. The Tribunal set aside the impugned order, allowing the appeal with consequential relief.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT CHENNAI delves into the complexities of the case, focusing on the eligibility of the appellant for the refund of Additional Customs duty and the interpretation of key legal terms and agreements in the context of Customs regulations.