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2018 (8) TMI 366 - AT - CustomsRefund of customs duty paid in excess - Board Circular dated 10.11.2008 - rejection of refund on the ground that the assessment had become final, there being no challenge to such assessment - Held that - On an identical issue in the case of Sameera Trading Company 2010 (5) TMI 518 - CESTAT, BANGALORE , it was held that 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 - refund allowed. The impugned order in the case in hand is unsustainable and liable to be set aside - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Rejection of refund claim by the appellant. 2. Finality of customs duty assessment. 3. Applicability of Board Circulars. 4. Legal precedents and their relevance to the case. 5. Correction of errors under Section 154 of the Customs Act. Issue-wise Detailed Analysis: 1. Rejection of Refund Claim by the Appellant: The appellant filed a refund claim for excess customs duty paid, which was rejected by the Adjudicating Authority and the First Appellate Authority. The rejection was based on the finality of the customs duty assessment, which was not challenged by the appellant. 2. Finality of Customs Duty Assessment: The authorities rejected the refund claim citing that the customs duty assessment had become final, and there was no challenge to the assessment. They relied on the Apex Court's decisions in Priya Blue and Flock (India) Pvt. Ltd., which state that without challenging the assessment, a refund claim cannot be entertained. 3. Applicability of Board Circulars: The appellant relied on the Board Circular dated 10.11.2008, which clarified that till 31.12.2008, the FOB value should be considered as cum-duty value for export duty purposes. The Departmental Representative argued that since the assessment was final on the date of the Circular, the refund claim was correctly rejected. Another Board Circular No. 24/2004-Cus dated 18.03.2004 was also cited, emphasizing the applicability of the Apex Court's decision in Flock (India) Pvt. Ltd. to customs cases. 4. Legal Precedents and Their Relevance to the Case: The appellant cited several case laws where similar issues were decided in favor of the appellants, including: - Sameera Trading Company [2011 (264) ELT 578] - Commissioner Vs. Muneer Enterprises [2015 (319) ELT A226 (S.C)] - Sesa Goa Ltd., Vs. CCE & ST Bhubaneswar-I [2015 (12) IMI 60 – CESTAT - Kolkata] - Commissioner of Customs, Guntur Vs. ILC Industries Ltd., [2016 (341) ELT 131 (Tri.- Bang.)] - CCE, Chennai Vs. Bellary Iron Ores P. Ltd., [2017 (11) TMI 1533- CESTAT, Chennai] - CC Vs. Muneer Enterprises, Vibhutigudda Mines P. Ltd., [2010 (7) TMI 1005 – CESTAT Bangalore] - Sesa Goa Ltd., Vs. CCE & ST Bhubaneswar – I [2014 (313) ELT 314 (Tri. – Kolkata)] 5. Correction of Errors under Section 154 of the Customs Act: The Tribunal found that the original authority had assessed the shipping bill contrary to legal provisions. The Circular No. 18/2008 clarified that the FOB price should be taken as cum-duty price, which was a practice followed for decades. The Tribunal noted that the error could be corrected under Section 154 of the Customs Act, which allows for the correction of clerical or arithmetical mistakes or errors arising from accidental slips or omissions. The Tribunal cited several cases supporting the correction of such errors without the need for the importer to challenge the assessment, including: - Senka Carbon Pvt. Ltd. v. CC, Chennai [2007 (216) E.L.T. 397 (Tri. - Chennai)] - VST Industries Ltd. v. Commissioner of Customs, Mumbai [2007 (207) E.L.T. 513 (Tri. - Mumbai)] - Aditya Birla Nuvo Ltd. [2008 (222) E.L.T. 249 (Tri. Bang.)] - Hero Honda Motors Ltd. [2008 (227) E.L.T. 482 (Tri. - Del.)] - I.P. Rings Ltd. v. Commissioner [2006 (202) E.L.T. 61 (Tri.)] Conclusion: The Tribunal concluded that the impugned order was unsustainable and set it aside. The appeal was allowed with consequential reliefs, if any. The Tribunal emphasized that the original authority should have allowed the refund by correctly assessing the export duty considering the FOB value as cum-duty value, in line with the legal provisions and judicial precedents.
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