2022 (9) TMI 25 - AT - Customs

Refund of Customs Duty - refund claim filed after threshold of limitation prescribed in section 27 of Customs Act, 1962 or not - Central Board of Excise Customs (CBEC) in circular no. 45/2016-Cus dated 23rd September 2016 - HELD THAT - There is no doubt that public notice no. 30/2015-20 dated 8 th September 2016 did prescribe mode of surrender of one or the other to be exercised within nine months thereof with the observation that penal consequences and detriment would not follow. The disinclination of the lower authorities to adhere to this commitment in the public notice, adopted in its entirety by Central Board of Excise Customs (CBEC) in circular no. 45/2016-Cus dated 23rd September 2016, was the direction in the latter that pending cases be disposed off accordingly. The duty and interest liability were made good before issue of show cause notice despite which proceedings under section 28 of Customs Act, 1962 were initiated and, it would appear, as mandatory penalty under section 114A of Customs Act. 1962 was invokable. The recovery was required to be completed by issue of adjudication order; however, under the new incorporation in section 28 of Customs Act, 1962, facility of reduced penalty was made available and the appellant opted for the benefit bringing the proceedings to a conclusion on their own which, even without a speaking adjudication order, is closure and not dropping of proceedings - The existence of protest is not germane to consequential relief with its own self-contained frame of limitation. The claim for refund is not maintainable; that would be tantamount to interference with concluded, and unchallenged, proceedings - Appeal dismissed.

Issues:
1. Denial of refund beyond the limitation period prescribed in the Customs Act, 1962.
2. Eligibility for duty foregone recovery due to ineligibility under specific notifications.
3. Challenge of claim rejection based on public notices and circulars.
4. Dispute regarding the possession of 'scrip' and 'authorization' leading to restitution process.
5. Interpretation and adherence to public notices and circulars by lower authorities.
6. Initiation of proceedings despite payment, invocation of penalty, and conclusion of proceedings.
7. Maintainability of refund claim interfering with concluded proceedings.

Analysis:
1. The issue in this appeal revolves around the denial of a refund claimed by M/s Huhatamaki PPL Ltd beyond the limitation period prescribed in section 27 of the Customs Act, 1962. The appellant had discharged a significant liability between specific dates in 2014 and 2015, including duty foregone, interest, and penalty, prompting payment due to a show cause notice issued in April 2015.

2. The proceedings were initiated under section 28 of the Customs Act, 1962 due to the appellant's ineligibility under specific notifications related to duty foregone on imports. Compliance with the proceedings was noted in September 2015, leading to the conclusion of the case.

3. The claim for refund was triggered by public notices and circulars issued by the DGFT and CBEC, respectively. The rejection of the claim was challenged through the appellate process, culminating in the current appeal due to the Commissioner of Customs (Appeals) upholding the original authority's decision.

4. The appellant's possession of 'scrip' and 'authorization' in the same year led to the commencement of the process of restitution for duty foregone on imports. The appellant was disentitled to use the 'scrip' as per the relevant notification.

5. The lower authorities' interpretation and adherence to public notices and circulars regarding the surrender of 'scrip' within a specified period led to a dispute. The authorities declined to consider concluded proceedings as pending, resulting in the ineligibility of the refund claim.

6. Despite the appellant making good the duty and interest liability before the show cause notice, proceedings were initiated, invoking penalty under the Customs Act, 1962. The appellant opted for reduced penalty under the new incorporation in the Act, bringing the proceedings to a conclusion without a speaking adjudication order.

7. The Tribunal dismissed the appeal, stating that the claim for refund would interfere with concluded and unchallenged proceedings. The existence of a 'protest' was deemed irrelevant to consequential relief, which could only be accessed through the appellate process, if applicable.

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