9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (8) TMI 367 - 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 filed by the appellant. 2. Finality of assessment and its challenge. 3. Application of board circulars and legal precedents. Detailed Analysis: Issue 1: Rejection of Refund Claim The appellant filed a shipping bill for export on 20.09.2008 and paid customs duty based on the FOB value on 24.09.2008. Subsequently, they sought a refund of excess customs duty paid, relying on a board Circular dated 10.11.2008, which clarified that till 31.12.2008, the FOB value should be considered as cum-tax FOB for export duty purposes. Both the Adjudicating Authority and the First Appellate Authority rejected the refund claim on the ground that the assessment had become final and was not challenged, citing the Apex Court's decisions in Priya Blue and Flock (India) Pvt. Ltd. Issue 2: Finality of Assessment and its Challenge The appellant argued that the identical issue was decided in favor of the appellants in the case of Sameera Trading Company [2011 (264) ELT 578], affirmed by the Apex Court in Commissioner Vs. Muneer Enterprises [2015 (319) ELT A226 (S.C)]. The Departmental Representative countered that the assessment was final on the date of the board Circular, and without a challenge to the assessment, the refund claim was rightly rejected, referencing another Board Circular No. 24/2004-Cus dated 18.03.2004 and the Apex Court's decision in Flock (India) Pvt. Ltd. Issue 3: Application of Board Circulars and Legal Precedents The Tribunal found no dispute regarding the filing of the shipping bill, discharge of customs duty, and the consideration of FOB as cum-duty value. The Tribunal referred to the case of Sameera Trading Company, where it was held that the original authority wrongly assessed the export duty by considering the FOB value as the transaction value, contrary to the board Circular No. 18/2008 dated 10-11-2008. 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 precedents: - Senka Carbon Pvt. Ltd. v. CC, Chennai [2007 (216) E.L.T. 397 (Tri. - Chennai)]: It was held that if the assessing officer committed a mistake, it should be corrected, and any excess amount collected should be refunded without the importer needing to challenge the assessment. - VST Industries Ltd. v. Commissioner of Customs, Mumbai [2007 (207) E.L.T. 513 (Tri. - Mumbai)]: The Tribunal allowed the appeal for refund of excess duty paid due to a mistake in calculation, emphasizing the power of authorities to correct errors under Section 154. - Hero Honda Motors Ltd. [2008 (227) E.L.T. 482 (Tri. - Del.)]: The Tribunal allowed the correction of an accidental slip leading to a mistake in duty calculation under Section 154, noting that the benefit of the remedy should not be denied merely because an appeal against the assessment order was not filed. Conclusion: The Tribunal concluded that the impugned order was unsustainable and set it aside. The appeal was allowed with consequential reliefs, if any, affirming that errors in duty assessment could be corrected under Section 154 of the Customs Act, and refund claims should be honored accordingly. The judgment emphasized the consistent application of legal principles and precedents in similar cases, reinforcing the appellant's entitlement to the refund.
|
