2023 (11) TMI 404 - AT - Customs

Refund of Anti Dumping Duty - refund application filed without challenging the assessment order under Section 17(4) of Customs Act, 1962 - Bills of Entry were finally assessed without mention of demand/ payment of Anti Dumping Duty - HELD THAT - Though there is a mention in the order of the authority s below about the endorsement on system about payment of Anti Dumping Duty. However, the finalization of bill of entry does not show any reference of payment of Anti Dumping Duty nor there is any order showing reassessment of Bills of Entry with regard to payment of ADD. From the perusal of the bill of entry which is a final assessment order there is no mention of Anti Dumping Duty for the obvious reason that the Anti Dumping Duty was not leviable at the relevant time. The department emphasized that the appellant should have challenged the final assessment order of the bills of entry in order to claim refund of Anti Dumping Duty. It is very surprising that when the finally assessed bills of entry do not bear any reference to the assessment/reassessment order in respect of payment of Anti Dumping Duty there is no purpose of challenging the bills of entry which was assessed finally. As regard the payment of Anti Dumping Duty by the appellant it is nothing but only a deposit without having part of the final assessment of bills of entry. As per the Hon ble Supreme Court judgment in the case of ITC Ltd 2019 (9) TMI 802 - SUPREME COURT importer can file a refund claim only if the duty which was assessed under final assessment of bills of entry is challenged by way of filing appeal. However, in the present case since the Anti Dumping Duty is not part and partial of final assessment of bills of entry there is no question of challenging the assessment of bills of entry for claiming the refund of Anti Dumping Duty. Since the Anti Dumping Duty was separately paid without having included in the final assessement of bill of entry, the appellant is entitled for refund without any challenge to the assessment order which was otherwise not required. In the present case it is undisputed fact by the revenue also that the ADD paid by the appellant was not at all leviable at the relevant time. Therefore, duty which was not leviable and there is no is on that there can not be assessment/ reassessment of such not leviable duty. This fact also strengthen the case of the appellant. In absence of any final assessment order in respect of payment of Anti Dumping Duty and particularly in the fact that the Anti Dumping Duty was not leviable at the relevant time - appellant is legally entitled for the refund claim - Impugned order set aside - appeal allowed.

Summary

Issues Involved:
1. Validity of filing a refund application without challenging the assessment order under Section 17(4) of the Customs Act, 1962.
2. Entitlement for refund of Anti Dumping Duty (ADD) paid by the appellant.

Summary:

Issue 1: Validity of Filing Refund Application Without Challenging the Assessment Order

The primary issue in this case was whether the filing of a refund application without challenging the assessment order under Section 17(4) of the Customs Act, 1962, is valid. The appellant had imported goods from Singapore and cleared them without paying Anti Dumping Duty (ADD) as the notification levying ADD had expired. The appellant voluntarily deposited a total amount of Rs. 53,23,671/- in anticipation of ADD, even though it was not applicable after 29.07.2015. The appellant later filed a refund claim for this amount. The Deputy Commissioner sanctioned the refund, but this decision was reviewed and challenged by the department, leading to a series of appeals.

The appellant argued that the ADD payment was not part of the final assessment of the bills of entry and therefore, there was no need to challenge the assessment order to claim a refund. The department, however, relied on the Supreme Court judgment in the case of ITC Ltd, which mandates challenging the final assessment order to claim a refund. The Tribunal found that the final assessment of the bills of entry did not mention ADD, and thus, the appellant did not need to challenge the assessment order to claim a refund. The Tribunal concluded that the rejection of the refund claim by the department was incorrect and illegal.

Issue 2: Entitlement for Refund of ADD Paid by the Appellant

The Tribunal noted that the ADD paid by the appellant was not leviable at the relevant time, as confirmed by the department. The payment of ADD was considered a deposit rather than a statutory levy. The Tribunal emphasized that since the ADD was not part of the final assessment order, the appellant was entitled to a refund without challenging the assessment order. The Tribunal also observed that any endorsement regarding ADD payment on the system was not communicated to the appellant as part of the final assessment order. Consequently, the Tribunal held that the appellant was legally entitled to the refund claim.

Conclusion:

The Tribunal set aside the impugned orders and allowed the appeals, granting the appellant the refund of ADD paid. The Tribunal also set aside the order for the recovery of the erroneous refund, as the refund was deemed valid.

Pronounced in the open Court on 08.11.2023.