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2018 (8) TMI 334 - AT - CustomsRejection of an amount of the customs duty paid in excess - rejection of refund on the ground that the assessment had become final, there being no challenge to such assessment - Held that - There is no dispute as to the fact that filing of the shipping bill, discharge of the customs duty appellant herein and also question of considering the FOB as cum duty value - Identical issue decided in the case of Sameera Trading Company 2010 (5) TMI 518 - CESTAT, BANGALORE , where it was held that the Circular No. 18/2008, dated 10-11-2008 issued by CBEC, it was clarified that by taking the FOB price declared by the exporter as cum-duty price and working backwards from the FOB price to determine the value for assessment. The excess duty claimed by the respondents considering the FOB price as cum-duty price is in accordance with law and the original authority should have allowed the refund. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Rejection of refund claim by the appellant. 2. Finality of customs duty assessment and the applicability of the Apex Court's decisions. 3. Interpretation and application of relevant Board Circulars and legal provisions. Detailed Analysis: 1. Rejection of Refund Claim: The core issue revolves around the rejection of a refund claim filed by the appellant. The appellant had filed a shipping bill for export on 20.09.2008 and paid customs duty on 24.09.2008 based on the FOB value. They later sought a refund for the excess customs duty paid, relying on a Board Circular dated 10.11.2008, which clarified that till 31.12.2008, export duty discharged on FOB would be considered as cum-tax FOB value. However, both the Adjudicating Authority and the First Appellate Authority rejected the refund claim on the grounds that the assessment had become final and was not challenged. 2. Finality of Customs Duty Assessment: The authorities cited the Apex Court's decisions in Priya Blue and Flock (India) Pvt. Ltd., which held that without challenging the assessment, a refund claim cannot be entertained. The Learned Departmental Representative argued that the assessment was final as of the date of the Board Circular (10.11.2008) and that the appellant had not challenged the assessment. Hence, the refund claim was correctly rejected. 3. Interpretation and Application of Relevant Board Circulars and Legal Provisions: The Tribunal examined whether the FOB value should be considered as cum-duty value, as clarified in the CBEC Circular dated 10.11.2008. The Tribunal referred to the case of Sameera Trading Company, where a similar issue was decided in favor of the appellants. The Tribunal noted that the original authority had assessed the shipping bill contrary to the legal provisions and that the error could be corrected under Section 154 of the Customs Act, which allows for the correction of clerical or arithmetical mistakes. The Tribunal also examined several case laws, including: - Sesa Goa Ltd. v. CCE & ST Bhubaneswar-I - Commissioner of Customs, Guntur v. ILC Industries Ltd. - CCE, Chennai v. Bellary Iron Ores P. Ltd. - CC v. Muneer Enterprises, Vibhutigudda Mines P. Ltd. - Sesa Goa Ltd. v. CCE & ST Bhubaneswar-I These cases supported the view that the refund claim could be entertained even if the assessment was not challenged, provided there was an error in the assessment that could be corrected under Section 154. Conclusion: The Tribunal found that the original authority had committed an error in computing the export duty by considering the FOB value as the transaction value. The Tribunal held that the error could be corrected under Section 154 of the Customs Act, and the refund should be granted. The impugned order was set aside, and the appeal was allowed with consequential reliefs. This comprehensive analysis highlights the Tribunal's reasoning in setting aside the impugned order and allowing the appeal, emphasizing the importance of correcting assessment errors under Section 154 and the applicability of relevant judicial precedents.
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