2019 (3) TMI 199 - AT - Customs

Refund of excess duty paid - amendment in the Bill of Entry under Section 149 of the Customs Act - Anti-dumping duty paid which was not required to be paid - Sl. No. 12 of Notification 48/2012 dated 08.10.2012 - Held that - The appellants have filed the Bill of Entry and an objection was raised regarding the liability of the appellant to pay the Anti-dumping duty which was paid by the appellant without any protest. Further as per the Notification, the appellant is not liable to pay the Anti-dumping duty if the appellant clearly establishes that the country of origin and the country of export is from Russia. Further, the objection of the Commissioner (Appeals) that there is an inordinate delay in challenging the assessment is not tenable in law as the appellant has moved an application seeking amendment in the Bill of Entry after the expiry of five and half months only. Further, with regard to the country of origin, the appellant has not been able to clearly establish with the documents that the country of origin is Russia as there are certain discrepancies in the Certificate of Country of Origin vis- -vis the commercial invoice issued by the Sojitz Corporation and further the commercial invoice mentions the contract and the purchase order in the invoice on the basis of which goods have been exported which have not been brought on record to clearly establish that country of origin of the goods imported by the appellant. This case needs to be remanded back to the original authority to examine all the documents placed on record - appeal allowed by way of remand.

Summary

Issues:
- Rejection of appeal by Commissioner (Appeals) based on inordinate delay and commercial invoice sourced from Japan
- Applicability of Anti-dumping duty under Notification No. 48/2012 Cus.
- Claim for amendment in Bill of Entry under Section 149 of the Customs Act
- Establishing the country of origin for goods imported

Issue 1: Rejection of appeal based on delay and commercial invoice sourced from Japan
The appellant challenged the rejection of the amendment by Deputy Commissioner, citing inordinate delay and the commercial invoice being sourced from Japan. The appellant contended that the rejection on grounds of delay was not legally sound. The appellant argued that the Anti-dumping duty was wrongly paid and not required under Notification 48/2012. The appellant relied on legal precedents to support the claim for amendment.

Issue 2: Applicability of Anti-dumping duty under Notification No. 48/2012 Cus.
The Assistant Commissioner initially rejected the appellant's request for reassessment, citing Section 149 of the Customs Act, 1962. The appellant maintained that Anti-dumping duty was not applicable due to the country of origin being Russia and sought a refund for the excess duty paid. The appellant argued that despite paying the duty as requested by Customs, it was not mandatory under Notification 48/2012.

Issue 3: Claim for amendment in Bill of Entry under Section 149 of the Customs Act
The appellant sought an amendment in the Bill of Entry under Section 149 of the Customs Act, contending that the Anti-dumping duty was not required to be paid as per the conditions specified in Notification 48/2012. The appellant emphasized that the duty was paid without protest and should be refunded. The appellant challenged the rejection of the claim based on the acceptance of liability and payment without protest.

Issue 4: Establishing the country of origin for goods imported
The Commissioner (Appeals) raised concerns regarding the country of origin, highlighting discrepancies between the Certificate of Origin and the commercial invoice sourced from Japan. The Commissioner (Appeals) contended that the appellant failed to provide clear evidence on the country of origin, as the commercial invoice issuer was not the exporter listed in the Certificate of Origin. The Commissioner (Appeals) emphasized the need for clear documentation to establish the country of origin, as per the conditions of Notification 48/2012.

In the judgment, the Tribunal remanded the case to the original authority to re-examine the documents and determine the country of origin conclusively. The Tribunal emphasized the need for clear evidence to establish the country of origin as Russia to qualify for the benefit under Notification 48/2012. The Tribunal allowed the appeal by way of remand, providing the appellant with an opportunity to produce additional documents to support the claim.