Home Case Index All Cases Customs Customs + AT Customs - 2021 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (12) TMI 362 - AT - CustomsValidity of assessment of bills of entry - Levy of ADD - Rubber Chemical Antioxidant (Kumanox 13) - N/N. 04/2016-CUS - adjudicating authority rejected the claim on the ground that the appellant have not challenged the assessment of bill of entry - HELD THAT - The issue that whether the assessment of bill of entry needs to be challenged in order to claim the refund of differential ADD arising due to the reduction of rate of ADD by Notification. There is no need to challenge the assessment as the Section 9A sub section (2) clause (b) itself has provision for refund in case of ADD. Therefore, the refund is arising as per the provision, therefore, there is no further requirement of challenging the assessment of bill of entry. As regard the ground of rejection made by learned Commissioner (Appeals) of time bar, the refund was filed by the appellant on 27.10.2016 and Notification reducing the rate of ADD was issued on 29.01.2016. Firstly, there is no time limit provided in the section 9A sub section (2) clause (b) for claiming refund, therefore, the appellant have filed the refund claim within reasonable time i.e. one year. The appellant are entitled for the refund. Since the lower authority have not examined the factual aspect of the refund, the refund needs to be processed by verifying the documents - Appeal allowed by way of remand.
Issues:
1. Refund claim rejected on the ground of not challenging the assessment of bill of entry. 2. Refund claim considered time-barred by the Learned Commissioner (Appeals). 3. Applicability of challenging the assessment of bill of entry for claiming refund of differential Anti-Dumping Duty (ADD). 4. Orders of the adjudicating authority and the Commissioner (Appeals) traveling beyond the scope of the Show Cause Notice. 5. Entitlement of the appellant for the refund based on factual aspects and previous similar cases. Analysis: 1. The appellant filed bills of entry and paid Anti-Dumping Duty @ 10.35 per kg for goods imported. The duty rate was later reduced retrospectively, leading to a claim for a refund of excess duty paid. The adjudicating authority rejected the claim for not challenging the bill of entry assessment, which was deemed beyond the scope of the Show Cause Notice. 2. The Learned Commissioner (Appeals) considered the refund claim as time-barred, although no time limit was specified in the relevant Customs Tariff Act provision for claiming the refund. The appellant filed the claim promptly after the duty rate reduction notification, within a reasonable timeframe of one year. 3. The issue of challenging the bill of entry assessment for claiming ADD refund was examined. The appellate authority highlighted that as per Section 9A sub-section (2) clause (b) of the Customs Tariff Act, there is no explicit requirement to challenge the assessment for claiming a refund. Previous judgments were cited to support this interpretation. 4. Both the adjudicating authority and the Commissioner (Appeals) were criticized for going beyond the charges in the Show Cause Notice, rendering their orders unsustainable. The judgment emphasized the importance of sticking to the foundation laid by the Show Cause Notice in legal proceedings. 5. The appellant's entitlement to the refund was upheld based on the absence of a time limit for filing the claim and the provision in the Customs Tariff Act. Previous instances where similar refunds were granted by the department at other ports were cited to support the appellant's case. The judgment allowed the appeal by remanding the case to the adjudicating authority for processing the refund based on the observations made.
|