2022 (1) TMI 467 - AT - Customs

Goods imported from Myanmar - teak sliced veneer - exemption from whole customs duty as per Notification No. 46/2011-Cus dated 01.06.2011, as per the entry at S.No. 545 thereof - non-submission of Certificate of origin along with the aforesaid Bill of Entry - HELD THAT - It is observed that important condition of the Notification No. 46/2011 dated 1.6.2011 of in case the certificate of origin along with Bill of Entry was not fulfilled by the appellant at the relevant time. It is observed that the said certificate was produced by the appellant before the Original Adjudicating Authority itself i.e., on 26.2.2019. The Original Authority , despite acknowledging the receipt has failed to give the benefit of said certificate in its order dated 22.8.2019. The request of appellant for re-assessment of duty was pending before the department since 2018. The findings of the Original Adjudicating Authority who were aware of order upheld by the Commissioner (Appeals) vide his order under challenge have failed to appreciate the pendency of said request of re- assessment. Keeping in view the mandate directed by the Apex Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV 2019 (9) TMI 802 - SUPREME COURT , (where Apex Court has made the reassessment as a mandatory pre requisite for considering the request of the refund of duty paid which was not otherwise liable to be paid) and the No Objection endorsed by the department, the original adjudicating authority is directed to first consider the request of re-assessment of the appellant as was made on 6.9.2018 and then to decide the refund claim afresh. The present appeal stand allowed by way of remand.

Summary

Issues involved:
Import of teak sliced veneer from Myanmar, exemption from customs duty, non-submission of certificate of origin, rejection of refund claim by the Assistant Commissioner of Customs, rejection of appeal by the Commissioner (Appeals), request for reassessment, failure to consider certificate of origin, failure to consider request for reassessment, appeal before the Tribunal.

Analysis:

1. Import of teak sliced veneer from Myanmar and exemption from customs duty:
The appellant imported teak sliced veneer from Myanmar, which was exempted from whole customs duty as per Notification No. 46/2011-Cus. However, the appellant failed to submit the certificate of origin along with the Bill of Entry, leading to complications in the customs process.

2. Rejection of refund claim by the Assistant Commissioner of Customs:
The Assistant Commissioner of Customs rejected the refund claim of the appellant as the certificate of origin was not filed until 26.2.2019, despite multiple opportunities given to the appellant. The rejection was based on the non-compliance with the necessary documentation requirements.

3. Rejection of appeal by the Commissioner (Appeals):
The appellant filed an appeal against the rejection of the refund claim by the Assistant Commissioner of Customs. However, the Commissioner (Appeals) upheld the rejection in Order No. 1017/2020-21 dated 15.10.2020, further aggravating the appellant's situation.

4. Request for reassessment and failure to consider it:
The appellant's counsel argued that there was an inadvertent mistake in not filing the certificate of origin initially. The appellant had requested reassessment in a letter dated 24.9.2018, emphasizing the importance of considering the request before rejecting the refund claim. The Original Adjudicating Authority failed to consider this request, leading to the rejection of the refund claim.

5. Tribunal's decision and direction for reassessment:
After hearing both parties, the Tribunal observed the errors in the Original Adjudicating Authority's decision. The Tribunal noted that the certificate of origin was eventually produced by the appellant and that the request for reassessment was pending since 2018. Citing the mandate of the Apex Court in a relevant case, the Tribunal directed the Original Adjudicating Authority to first consider the request for reassessment before deciding the refund claim afresh.

6. Conclusion:
The Tribunal allowed the appeal by way of remand, emphasizing the importance of following due process and considering all relevant aspects, including the request for reassessment and the submission of the certificate of origin. The decision aimed to ensure a fair and thorough review of the appellant's refund claim in compliance with legal requirements and precedents.

This detailed analysis of the judgment highlights the key issues, arguments presented, decisions made, and the Tribunal's directions for further proceedings in the case.