2018 (8) TMI 430 - AT - Customs

Refund claim - provisional transactional value - the Assessable value quoted in the Shipping Bill has been drastically reduced - rejection of refund on the ground that refund claimed by them without challenging the assessment is not maintainable - Held that - The value declared by the appellant in the case in hand is a provisional transaction value as the invoice indicates that is a provisional invoice. Provisions of the Section 16 mandate for determination of rate of duty in respect of export goods and Section 18 of the Customs Act, talks about provisional assessment of duty in the case of exports and imports. Provisions of Section 16 has to be given a play by reading to Section 14, which would indicate that value of export of goods shall be the transaction value of those goods which means the price actually paid or payable for the goods when exported from India and place of exportation. Since in the case in hand, the price payable by the purchaser was not final and was lowered, subsequently and accepted by Reserve Bank of India. The reduced price of the export goods has been correctly accepted by the First Appellate Authority as the price payable or paid for the consignment exported by the shipping bill dated 22.08.2008 - the First Appellate Authority was correct in coming to such a conclusion. The shipping bill dated 22.08.2008 is not yet finalized by the assessing officer. The shipping bill needs to be finalized by the assessing officer - the issue of finalization of the shipping bill remitted to the assessing officer, who shall do so in accordance with the law and shall also consider the documentation entered with Reserve Bank of India by the respondent and consequent to the finalization of the shipping bill shall refund the differential duty paid. Appeal allowed by way of remand.

Summary

Issues Involved:
1. Whether the appellant can claim a refund of export duty without challenging the assessment order.
2. Determination of the relevant date for the value of export goods when there is a fluctuation in price post-export.
3. Whether the invoice was provisional and its implications on the refund claim.
4. The role of the Reserve Bank of India’s approval in the reduction of invoice value.

Detailed Analysis:

Issue 1: Claiming Refund Without Challenging the Assessment Order
The primary issue was whether the appellant could claim a refund without challenging the assessment order. The lower authority denied the refund under Section 27 of the Customs Act, arguing that the assessment was final. The appellant contended that the reliance on the Supreme Court decision in "Flock India Pvt. Ltd." was misconceived. The First Appellate Authority held that filing a refund claim itself is a challenge to the assessment order, referencing the Tribunal’s decisions in "Aditya Birla Nuvo Ltd." and "Jindal Vijayanagar Steels Ltd." This position was upheld, indicating that a separate appeal against the assessment order was unnecessary as the refund claim itself constituted a challenge.

Issue 2: Relevant Date for Value Determination Post-Export
The second issue was whether re-determination of the value was permissible after export due to price fluctuations. The lower authority cited Section 14 and 16 of the Customs Act, concluding that price fluctuations post-export were irrelevant to duty assessment. However, the appellant argued that the transaction was at arm's length and supported by documentary evidence, including the RBI's approval for a reduced invoice price. The First Appellate Authority found that the invoice was provisional and the RBI's approval validated the reduced price, distinguishing the case from "M.R.F. Ltd. vs. CCE Madras."

Issue 3: Provisional Invoice
The invoice in question was marked as provisional, which was undisputed by the lower authority. The First Appellate Authority noted that the invoice's provisional nature and the RBI’s approval for a reduced price justified the refund claim. The Tribunal confirmed that the shipping bill was assessed provisionally, as indicated by the assessing officer’s endorsement, and had not been finalized.

Issue 4: RBI’s Approval
The RBI's letter dated 05.11.2008 permitted the reduction in invoice value from USD 24,13,623.28 to USD 6,00,500. The First Appellate Authority and the Tribunal emphasized that the RBI's approval lent credibility to the appellant's claim and supported the refund.

Conclusion:
The Tribunal upheld the First Appellate Authority’s decision, allowing the refund claim based on the provisional nature of the invoice, the RBI’s approval, and the interpretation that filing a refund claim challenges the assessment order. The Tribunal remitted the issue of finalizing the shipping bill to the assessing officer, who must finalize it in accordance with the law and refund the differential duty paid.