2023 (4) TMI 1204 - AT - Customs

Refund of SAD - rejection on the ground that the respondent being eligible to claim benefit of exemption Notification No.29/2010 for goods, ought to have sought for reassessment and filed refund claim under Section 27 of Customs Act, 1962 instead of filing claim under notification 102/2007 - some part of Bill of Entry rejected on the ground that the goods imported and sold against the sale invoices were not tallying - denial of some part also on the ground that the goods were sold on the same date of import as per the sales invoices, while actually the goods were physically removed from Air Cargo Customs only on the next day. Rejection on the ground that Bill of Entry in regard to RSP based assessed goods has to be reassessed and refund claim has to be filed for the CVD paid by respondent under Section 27 of the Customs Act, 1962 - HELD THAT - As per Notification No.102/2007 the scheme of exemption is by way of refund. The importer has to pay the duty (CVD) and then file refund claim when the goods have been sold in domestic market by paying VAT / Sales Tax. The scheme of exemption under notification No.102/2007 being in the nature of refund after payment of duty, it cannot be insisted that reassessment is required while filing refund. It may be true that respondent is eligible for benefit of Notification No.29/2010 by which they do not have to pay the CVD at the time of import. But however, the respondent has chosen not to avail this benefit and paid the duty (CVD). The respondent has then filed refund claim of the duty paid by them (CVD/SAD) in terms of notification no.102/2007 - The Department cannot insist that the importer should avail benefit of a particular notification when they are eligible for different notifications of the same duty of CVD / SAD. The case is a refund claim filed in terms of Notification No.102/2007 wherein the scheme is of refund only after payment of duty. In other words, one of the conditions that has to be fulfilled for claiming refund under Notification No.102/2007 is that the importer has to pay the CVD at the time of import of the goods. The assessment therefore is in order and does not require reassessment. There is no excess duty paid. For these reasons, the reliance placed by Ld A.R on the decisions is not applicable to the facts of the case. Though the respondent may be eligible for benefit of CVD in terms of Notification No.29/2010, it is their option to avail or not to avail the exemption. They have later claimed refund of the CVD paid by them. The original authority has rejected part of the refund claim in regard to some of the goods for which the benefit of notification 29/2010 would be applicable, and held that without reassessment refund claim cannot be sanctioned as they are eligible for benefit of notification No.29/2010. This view does not find favour in the present case. The view taken by the Commissioner (Appeals) is legal and proper - There are no grounds to interfere with the impugned order - Appeal filed by Revenue dismissed.

Summary

Issues involved:
The issues involved in the judgment are the rejection of a refund claim by the original authority, the eligibility of the importer for benefit of exemption under Notification No.29/2010, and the requirement of reassessment for refund claims under different notifications.

Rejection of Refund Claim:
The case involved an appeal by the department against the order passed by the Commissioner (Appeals) who allowed the appeal filed by the importer. The importer had filed a refund claim for Special Additional Duty (SAD) under the Customs Tariff Act, 1975. The original authority sanctioned a portion of the refund claim but rejected another part, citing reasons such as non-claiming of exemption under Notification No.29/2010 and discrepancies in goods sold against invoices.

Eligibility for Exemption Notification:
The adjudicating authority rejected part of the refund claim based on the importer's failure to claim the benefit of exemption Notification No.29/2010 for certain goods. The authority held that the importer should have sought reassessment and filed the refund claim under the Customs Act, 1962. The Commissioner (Appeals) held that the rejection of the refund claim on this ground cannot be sustained and ordered for the sanction of the refund. The department argued that the importer should have availed the benefit of the specific notification and challenged the assessment.

Requirement of Reassessment for Refund Claims:
The department contended that the importer should have challenged the assessment and availed the benefit of a particular notification. However, the Tribunal held that the scheme of exemption under Notification No.102/2007 is by way of refund after payment of duty, and reassessment is not required for filing a refund claim. The Tribunal emphasized that the importer's choice of notification for exemption is valid, and the department cannot insist on a specific notification when multiple options are available.