9911796707
TMI Blog2017 (11) TMI 1581X X X X Extracts X X X X X X X X Extracts X X X X ..... with duty @5% BCD (CN 12/2012-SI. No.108) + Nil rate of Addl. Duty of Customs + 3% (Education Cess) + 4% Spl. Addl. Customs Duty (CN 019/2006). The appellant paid the duty for the above mentioned Bills of Entry for home consumption. 3.2 Subsequently, the appellant has filed refund claims for Rs. 36,59,868/- under Section 27 of Customs Act, 1962 on 05.04.2013 contending that, they are entitled for concessional & preferential rate of basic Customs Duty @ 2% in accordance with the Notification No.46/2011, dated 01.06.2011 as amended by Notification No.127/2011, dated 30.12.2012 (SI. No.192) & basic duty @ 0% vide Notification No.64/2012, dated 31.12.2012 (Sl. No.192) as the goods originated from Malaysia. The appellants stated that, they we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible for refund by extending the benefit of preferential rate of duty in terms of Notification No.46/2011-Customs, dated 01.06.2011 as the original Certificate of Origin is presented within the period of it validity and if the lower authority is satisfied about the eligibility of merits and all other requirements in accordance with provisions of the Customs Tariff [Determination of Origin of goods under the Preferential Trade Agreement between the Governments of Member States of the Association of Asian Nations (ASEAN) and the Republic of India] Rules, 2009. 3.5 The Department has not followed the directions of the Order-in Appeal No.141/2014-VCH, Dated 30.10.2014 thinking that, the findings arrived at by the Commissioner (Appeals) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sultant submits that judgment of Micromax Informa Tics Ltd., [2016 (335) ELT 446 (Del.)] has come to a conclusion that the decision of Flock India & Priya Blue Industries Ltd., may not apply in the situation wherein Section 27 of the Customs Act, 1962 has been amended with effect from 08.04.2011. 7. On careful consideration of submissions made by both sides, we find that the Bills of Entries which are under consideration were filed on 07.01.2013, 13.07.2012, 07.11.2012, 01.01.2012, 08.06.2012, Undoubtedly, appellant is eligible for the benefit of reduced/concessional and preferential rate of basic customs duty as per Notification No.46/2011 as amended by time to time. On noticing that paid excess duty on the assessment of Bill of Entry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le that has been imported it has to be presumed that the said imported article has been manufactured in India and then the amount of excise duty leviable thereon has to be ascertained for determining the extent of exemption from payment of CVD to which the importer would be entitled. 3... .... 4... .... 5... .... 6... .... 7... .... 8. In Aman Medical Products Limited v. Commissioner of Customs, Delhi (supra), a Division Bench of this Court was considering an instance of an importer having filed B/Es, paid customs duty and thereafter claimed refund under Section 27 of the Act. The question of law framed by the Court in the appeal filed by the assessee against an order of refusal of refund read as under : "Whether non-filing of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those were cases where "there is no assessment order on dispute/contest, like as is in the present case." It was held in Aman Medical Products Limited (supra) that the assessee was entitled to maintain the refund claim notwithstanding that there was no appeal filed against the assessed B/Es. 11 ... ... 12. An important change that has been made is that a person can now claim refund of any duty or interest as long as such duty or interest was paid or borne by such person. The conditionality of such payment having been made pursuant to an order of assessment does not exist. Secondly, once an application is made under Section 27(1) of the Act, it is incumbent on the authority concerned to make an order under Section 27(2) determining if any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1)(i) as it stood prior to 8th April, 2011, particularly if such duty has not been paid under protest. In any event, after 8th April, 2011, as noticed hereinbefore, as long as customs duty or interest has been paid or borne by a person, a claim for refund made by such person under Section 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. The above reproduced ratio of the judgment squarely covers the factual position in the case in hand, and the First Appellate Authority has applied the above said ratio in letter and spirit. We have no hesitation to hold that the First Appellate has rightly done ..... X X X X Extracts X X X X X X X X Extracts X X X X
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