2012 (8) TMI 748 - AT - Customs

EPCG licence - imported of machine - item was assessed to duty under Customs Tariff Heading No. 9030.89 applying the duty rate of 20% 5% 13%CVD 4%SAD - appellant requested for reassessment of the Bill of Entry on the ground that they have an EPCG licence for the same and requested for assessment @ 10% 5% which was rejected - refund claim was also rejected on the ground that inasmuch as the request for reassessment was rejected there is no merit in the refund claim Held that - Even if the assessment made under Bill of Entry is an appealable order the same does not prevent the department from passing a speaking order to enable the petitioner to file an appeal - department should have passed a speaking order as to why the appellant s claim for exemption under EPCG scheme was not admissible before they rejected the refund claim - matter is remanded to the original adjudicating authority

Summary

Issues:
Challenge to original assessment for refund claim under EPCG scheme.

Analysis:
The appeal was directed against an Order-in-Appeal passed by the Commissioner of Customs regarding the assessment of duty on an imported Automatic Capacitance & Dissipation Factor Tan Delta Measuring System. The appellant, having an EPCG license, requested reassessment at a lower duty rate, which was rejected. Subsequently, a refund claim for excess duty paid was also rejected on the grounds that the original assessment was not challenged. The appellant argued that they had sought reassessment, paid duty under protest, and challenged the original assessment, citing various tribunal and court judgments supporting their contention.

The Tribunal noted that the appellant had indeed sought reassessment before clearing the goods, paid duty under protest, and filed a refund claim. The department failed to consider the appellant's request for reassessment or provide a speaking order on the matter. The Tribunal held that the appellant had challenged the original assessment by protesting against it and seeking reassessment under the EPCG scheme. Referring to previous judgments, the Tribunal emphasized that the failure to file an appeal against the assessed Bill of Entry did not deprive the importer of the right to file a refund claim. The Tribunal found that the department should have passed a speaking order on the admissibility of the appellant's claim for exemption under the EPCG scheme before rejecting the refund claim.

As a result, the Tribunal remanded the matter to the original adjudicating authority to reconsider the appellant's claim for duty exemption under the EPCG scheme in accordance with the issued license and then evaluate the refund claim on its merits. The appeal was allowed by way of remand, emphasizing the importance of considering the appellant's claim for reassessment and refund based on the EPCG scheme eligibility.