2021 (8) TMI 771 - AT - Customs

Refund of the Extra Duty Deposit - Amount paid on imports during investigation when the Bills-of-Entry in question were provisionally assessed - denial of refund for want of challans - HELD THAT - It is the settled position of law that EDD is made pending investigation by the SVB, for the Bills-of-Entry which are provisionally assessed. Admittedly, most of the deposits/EDDs were made between 2011 and 2013, as could be seen from the table at page 1 paragraph 1 of the Order-in-Original dated 15.05.2019 containing the Challan Numbers as well as the date of the Challans reflecting the deposit. The obvious and the only possible conclusion is that the EDDs were made, following which the final assessments on the various Bills-of-Entry came to be passed. It is also the settled position of law that as regards EDD is concerned, the same is not a Duty and hence, provisions of Section 27 of the Customs Act, 1962 are not applicable. The law is well settled, as held by various judicial fora including the Hon ble jurisdictional High Court that refund of EDD should be made automatically upon the conclusion of final assessment without waiting for any application and hence, the denial of refund for want of challans which were not questioned while finalizing the assessment is no ground to deny - In the case on hand, the refund has been denied on the grounds that the RD challans have not been furnished as evidence for the payment of EDD with respect to 16 Bills-of-Entry (serial numbers 43 to 58 of the table at paragraph 1, page 4 of the impugned Order-in-Appeal) and for this reason alone, they were not considered for sanctioning refund. It is also on record that the appellant had submitted an indemnity bond for its above lapse and in any case, it is not the Revenue s case that no payments of EDD in so far as the 16 Bills-of-Entry are concerned, were ever made. The issue in so far as the 16 Bills-of-Entry are concerned, requires a relook by the Adjudicating Authority, who shall afford reasonable opportunities to the appellant to offer all such supporting documentary evidences as may be prescribed under various C.B.E.C. Circulars/Notifications, which are also binding on the Adjudicating Authority, and then, pass an appropriate order in accordance with law - Appeal allowed by way of remand.

Summary

Issues:
Refusal of refund of Extra Duty Deposit (EDD) based on lack of evidence for payment of EDD with respect to certain Bills-of-Entry.

Analysis:
The appellant imported goods and paid EDD for provisional assessment. The Deputy Commissioner accepted the declared value and finalized provisional assessments for most Bills-of-Entry. The appellant sought a refund of EDD, but the Adjudicating Authority sanctioned only a partial amount, citing lack of evidence for EDD payment for 16 Bills-of-Entry. The Commissioner of Customs (Appeals) upheld this decision, emphasizing the need for proof of EDD payment for processing refunds.

Upon review, the Tribunal found that EDDs were made for provisionally assessed Bills-of-Entry between 2011 and 2013, and final assessments were completed without issues raised on EDD payments. The Tribunal noted that EDD is not a duty under the Customs Act, and the law mandates automatic refund upon final assessment conclusion. Denying refund based on missing challans, not questioned during final assessment, was deemed unjustified.

The Tribunal referred to precedents and Circulars/Notifications by the Central Board of Indirect Taxes and Customs (C.B.E.C.), emphasizing that an indemnity bond supported by a Chartered Accountant Certificate could serve as valid evidence for refund processing. It directed the Adjudicating Authority to reassess the 16 Bills-of-Entry, allowing the appellant to provide necessary documents as per C.B.E.C. guidelines before issuing a new order in compliance with the law.

In conclusion, the Tribunal allowed the appeal for remand, instructing a reevaluation of the refund issue concerning the 16 Bills-of-Entry with adherence to C.B.E.C. Circulars/Notifications and providing the appellant with fair opportunities to present required documentary evidence for a just resolution.