2019 (5) TMI 1302 - AT - Customs

Refund of Anti-Dumping Duty paid - Polished Porcelain Tiles - Central Government vide Notification No. 12/2016 Cus. (ADD) dated 29.03.2016 notified Anti-Dumping Duty on Polished Porcelain Tiles, but on the date of filing of Bill of Entry, the Notification was not in force - application for refund was rejected on the ground that the date of Notification appearing in the Gazette is 29.03.2016 and since the appellant has neither challenged the original assessment in the Bill of Entry nor had paid the duty under protest hence not eligible for refund in terms of Circular No. 24/2004 Cus. dated 18.03.2004. Effective date of Notification of Anti-Dumping duty - HELD THAT - The appellant has proved on record that the said Notification No. 29/2016 dated 29.03.2016 was not in force on the date when the Bill of Entry was filed and this is clear from the reply given by the Publication Department of the Central Government on RTI application filed by the appellant confirming that the Notification was published on 02.04.2016 at 9.11 am. A Notification comes into force only from the date when the said Notification is published in the Official Gazette and in the present case the Anti-Dumping duty Notification was published on 02.04.2016. Therefore, the appellant was not liable to pay Anti-Dumping duty on 29.03.2016 when he filed the Bill of Entry and the said duty paid by him is paid under mistake. Rejection of refund on the ground of non challenging the assessment order - HELD THAT - After the amendment in Section 17 and 27 of the Customs Act 1962 w.e.f. 08.04.2011, there is no need to challenge the self-assessment made by the importer as there is no assessment order. Hon ble High Court of Delhi in the case of Micromax Informatics Ltd. 2016 (3) TMI 431 - DELHI HIGH COURT has held that after 8th April, 2011, as long as customs duty or interest has been paid or borne by a person, a claim for refund made by such person u/s 27(1) of the Act as it now stands, will have to be entertained and an order passed thereon by the authority concerned even where an order of assessment may not have reviewed or modified in appeal. Accordingly, the impugned order of the rejecting the refund claim of the petitioner on the ground of maintainability was, for the aforementioned reasons, plainly erroneous. In view of my discussion above and by following the ratios as laid down in the decision cited supra, I am of the considered view that the impugned order is not sustainable in law and therefore I set aside the same by allowing the appeal of the appellant with consequential relief, if any. - appeal allowed

Summary

Issues:
1. Effective date of Anti-Dumping Duty Notification
2. Refund eligibility without challenging self-assessment

Effective date of Anti-Dumping Duty Notification:
The appeal challenged the rejection of a refund application for Anti-Dumping Duty paid on Polished Porcelain Tiles. The appellant filed Bill of Entry on 29.03.2016, paying duties including Anti-Dumping Duty. However, it was later revealed that the Anti-Dumping Duty Notification was published in the Gazette on 02.04.2016, not in force when the Bill of Entry was filed. The appellant sought a refund of ?21,11,100, arguing that the payment was a mistake. The Tribunal analyzed the evidence, including an RTI reply, confirming the Notification's publication date. Citing legal precedents and Customs Act amendments, the Tribunal held that the duty was paid in error, as the Notification was not in force on the filing date.

Refund eligibility without challenging self-assessment:
The appellant contested the denial of refund on the grounds of not challenging the assessment made during self-assessment. The Tribunal noted Customs Act amendments, emphasizing self-assessment post-amendment, where importers cannot challenge their own assessments. Relying on various decisions, including a Delhi High Court case, the Tribunal ruled that post-amendment, refund claims must be entertained even without challenging self-assessment. The Tribunal set aside the impugned order, allowing the appeal with consequential relief.

This detailed analysis of the judgment highlights the key issues, arguments, evidence, legal precedents, and the Tribunal's reasoning leading to the final decision in favor of the appellant.