2022 (9) TMI 644 - HC - Customs

Rejection of refund claim - CESTAT has concurrently held that the price was provisional and this fact was known to the Department at the time of filing the bills of entry and accordingly, dismissed the appeal - HELD THAT - It is settled that CESTAT is the last fact finding Authority. Both the Commissioner of Customs (Appeals) and CESTAT have concurrently recorded a finding that the price of USD 715 was provisional and it was within the knowledge of the Department. It is also not in dispute that the import duty has been paid on the import of material computed at USD 715 and after rectification of bills of entry, the Assistant Commissioner of Customs has ordered the refund. The first substantial question of law is whether on the facts and in the circumstances of the case, the CESTAT was correct in holding that the price was provisional. Answer to the said question must be in the affirmative because the finding of the fact recorded by the Commissioner of Customs (Appeals) is based on the finding of the Assistant Commissioner of Customs. The second substantial question of law is whether Tribunal was correct in holding that the assessee was entitled to produce additional evidence - Rule 5(1)(b) of the Customs (Appeals) Rules, 1982, permits an assessee to produce the evidence where he was prevented by sufficient cause from producing the evidence which he was called upon to produce by the authority. Therefore, answer to this question also must be in affirmative. Appeal dismissed.

Summary

Issues:
1. Whether CESTAT was correct in holding that the price was provisional and known to the Department at the time of filing the bill of entry?
2. Whether the Tribunal was correct in allowing the assessee to produce additional evidence before the adjudicating authority?
3. Whether the Tribunal's decision on not addressing the issue of not opting for provisional assessment and refund under Section 18 of the Customs Act, 1962 was justified?

Analysis:

Issue 1:
The case involved an appeal by the Revenue challenging the CESTAT's decision regarding the provisional price declared in the bill of entry. The appellant argued that the CESTAT erred in its findings. However, the Commissioner of Customs (Appeals) and CESTAT both concluded that the price was provisional and known to the Department at the time of filing. The Court upheld this finding, emphasizing that CESTAT is the final fact-finding authority. As the duty was paid based on the provisional price and subsequently rectified, the appeal was dismissed.

Issue 2:
The second issue revolved around the Tribunal's decision to allow the assessee to produce additional evidence before the adjudicating authority. The appellant contended that this decision was incorrect. However, the Court examined Rule 5(1)(b) of the Customs (Appeals) Rules, 1982, which permits the production of evidence if prevented by sufficient cause. The Court affirmed the Tribunal's decision, stating that the assessee was entitled to produce additional evidence under the rule.

Issue 3:
Regarding the third issue, the Tribunal's failure to address the matter of not opting for provisional assessment and refund under Section 18 of the Customs Act, 1962 was raised. The Court noted that this issue was not purely legal and thus did not require an answer. After considering the factual matrix, the Court concluded that the first and second questions were answered in the affirmative, leading to the dismissal of the appeal.

In summary, the Court upheld the decisions of the Commissioner of Customs (Appeals) and CESTAT, affirming the provisional nature of the price declared in the bill of entry and the right of the assessee to produce additional evidence. The appeal was ultimately dismissed, with costs not imposed.