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TMI Blog2018 (12) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... t March, 2015; the Petitioner had paid such duty at the rate of 13.5% as prescribed. The case of the Petitioner is that under a Notification No.12 of 2012 dated 17th March, 2012 as amended from time to time, the applicable rate of duty on mobile phones was effectively 1% CVD. This concessional rate of duty would be available provided no Cenvat credit on inputs or capital goods has been availed. 3. Initially, the Petitioner paid higher rate of duty as mentioned above on the basis of Department's stand that on imported goods since no duty is of excise is levied, the question of not availing Cenvat credit does not arise. In other words, the benefit of the said exemption notification dated 17th March, 2012 was not allowed to the importers. The Petitioner would point out that the question whether the benefit of exemption notification dated 17th March, 2012 would be available also in case of the importers was considered by the Supreme Court in case of M/s SRF Limited Vs. CC, Chennai 2015 (318) ELT 607(SC). The Supreme Court held that an import of goods would also be entitled to claim the benefit of exemption from payment of CVD in terms of said notification. 4. The case of the Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation is made available according to law declared by the Supreme Court in the said judgment in case of M/s SRF Limited (supra). In response to such refund applications, the Deputy Commissioner of Custom Refund Cell, Mumbai wrote his first letter to the Petitioner on 18th September, 2013, which is titled as "Deficiency cum personal hearing memo". In such letter, the said authority pointed out as many as 10 different deficiencies in the Petitioner's refund applications, one of them being as under: "9. Duplicate (Importer's) copy of reassessed Bills of Entry." 7. The Petitioner replied to such letter of the Deputy Commissioner dated 18th September, 2015 under communication dated 16th December, 2015. The Petitioner sought to meet with all the deficiencies pointed out by the said authority. In the context of the deficiency No.9 which is reproduced above, the Petitioner made following detailed representation : "Duplicate (Importer's) copy of reassessed Bills of Entry. At the outset, we would like to submit that there is no requirement under the Customs Act, 1962 to get the BOEs reassessed for the purpose of claiming refund of excess additional duty of custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edical Products Limited Vs. Commissioner of Customs, Delhi 2010 (250) E.L.T. 30(Del)('Aman Medical case') the Hon'ble Delhi High Court examined section 17 and 27 of the Customs Act and in that context held that bill of entry even if assessed by the proper officer, in absence of any lis or dispute does not become an adversarial or appealable order and therefore refund application under section 27 of the Customs Act filed by the appellant is valid. It is submitted that the aforesaid decision of the Hon'ble Delhi High Court has also been recently relied upon by the Delhi CESTAT in the case of M/s Seiko Brushware (India), M/s Seiko Bristle Corporation & M/s Seiko Brushware (India) Versus C.C. New Delhi (Import & General )(2015(12) TMI 169 - CESTAT New Delhi). In this case, the appellant filed refund on the ground that the goods were assessed at a higher rate while the goods were eligible for the benefit of a lower rate as per an exemption Notification. The authorities rejected the refunds placing reliance on the Priya Blue case as there was no order of assessment reviewed by a higher appellate authority. The CESTAT relied on the Aman Medical case to allow the appeals b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reassessed bill of entries on the basis of which the Petitioner was claiming the refund. 10. According to the Petitioner, before any response could be made to the said communication of 23rd January, 2016 to the Respondent, yet another Deficiency cum Personal hearing Memo came to be issued on 10th February, 2016, in which also identical remarks were made as were contained in the memo dated 23rd January, 2016. 11. The Petitioner under communication dated 24th February, 2016 made a detailed representation. The Petitioner referred to the provisions of Section 27 of the Customs Act, 1962 ("the Act" for short), referred to several judgments of various Tribunals and contended that a statutory right for filing refund claim has been conferred on an assessee under Section 27 of the Act. There is no obligation on the Petitioner either to first challenge the assessment or to get the bill of entry reassessed before making the claim of refund. 12. On 4th March, 2016, the Petitioner once again wrote to the Department and pointed out that the Petitioner had also filed refund claims before the Assessment Commissioner, New Delhi under similar circumstances. Such refund claims were rejected on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case and submissions made by the importer. I find that M/s Micromax Informatics Ltd. had filed a refund claim amounting to Rs. 7,75,14,764/ on 03.07.2015 on account of Excess Additional Customs Duty (CVD) paid against 99 Bills of Entry. 10. In find that the importer filed a refund application in terms of Notification No.12/2012Ex dated 17.03.2012(Sr.No. 263ACondition No.16). In this regard, the importer relied upon the judgment dated 26.03.2015 of Hon'ble Supreme Court of India in the case of M/s SRF Ltd. Vs. Commissioner of Customs, Chennai. 11. I find that the importer has filed a refund application but has not challenged the original assessment order and has not got the reassessment done for the B/E in terms excess duty paid by them at the time of assessment of the Bills of Entry. 12. I find that the instant refund claim is not maintainable in terms of reasons discussed in Para 6 at (A), (B) & (c) hereinabove. 13. In find that the importer has not approached concerned Appraising Group with a request of reassessment of Bs/E in terms of Notification No. 12/2012Ex.(Sr.No.263A), if at all they have the right to do so on the basis of original ruling. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also prayed for direction to the authorities to refund the excess duty paid. 15. Learned counsel for the Petitioner submitted that the customs authorities have committed a serious error in rejecting the refund applications on the ground that the bill of entries were not reassessed. He submitted that there is no such requirement in law. Learned counsel pointed out that a decision of the Bombay Tribunal clearly laying down the said proposition was cited before the Competent Authority. He was bounded by the said decision. Without referring to the decision, the refund claims came to be rejected. He also pointed out that by the time the refund applications were decided, the decision of Delhi High Court in case of the present Petitioner itself on identical facts was available. Such decision was cited before the Competent Authority despite which the refund applications were dismissed on wholly incorrect ground. Learned counsel took us extensively through the statutory provisions contained in the said Act to contend that by virtue of certain amendments in the statute, the stand of the Department insisting on reassessment of the bill of entries before granting refund is wholly invalid. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T page 145(SC) and CC v. Flock India Ltd. reported in 120 ELT page 285. These decisions undoubtedly had held that in order to claim refund in terms of Section 27 of the Act, the importer would have to challenge the assessment and the refund claimed would have to be based on such Appellate order. In other words, the view propounded by the Supreme Court was that without having the assessment set aside, an importer cannot claim refund of the duty paid. 19. The Division Bench of Delhi High Court however examined the said decisions of the Supreme court in case of M/s Priya Blue Industries and Flock India Limited (supra) in the contest of certain significant amendments made in the Act with effect from 8th April, 2011 particularly in Section 27 thereof. Delhi High Court in case of M/s Micromax Informatics Limited (supra) held and observed as under: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has undergone a significant change with effect from 8th April 2011. The impugned order of the Assistant Commissioner (Refund) rejecting the refund claim of the Petitioner on the ground of maintainability was, for the aforementioned reasons, plainly erroneous." As pointed out by the counsel for the Petitioner, this decision of the Delhi High Court in case of Micromax Informatics Ltd.(supra) has been followed consistently in other cases by the said High Court. Learned Single Judge of Madras High Court in case of this very Petitioner i.e. Micromax Informatics Limited has also in a detailed judgment dated 18th April, 2018 adopted the said ratio. 20. Ordinarily, therefore, we would have accepted the Petitioner's request without any further discussion. However, since in so far as this Court is concerned, no earlier decision is available, we have also independently examined the position. We would like to give brief reasons for concurring with the view of the Delhi and Madras High Courts in case of Micromax Informatics Limited (supra). Prior to the amendment brought into the statute with effect from 8th April, 2011 by virtue of Finance Act, 2011, Section 17 of the Act provided for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which such refund is claimed was collected from, or paid by, him and the incidence of such [duty and interest, if any, paid on such duty] had not been passed on by him to any other person." 22. After the amendment with effect from 8th April, 2011 Section 17 was recaste. Relevant portion of Section 17 post amendment reads as under: Section 17 Assessment of duty.- (1) After an importer entering any imported goods under section 46 or an exporter entering any export goods under section 50, shall, save as otherwise provided in section 85, selfassess the duty, if any leviable on such goods. (2) The proper officer may verify the selfassessment of such goods and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. (3) For verification of selfassessment under subsection (2), the proper officer may require the importer, exporter or any other person to produce any contract, broker's note, insurance policy, catalogue or other document, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously, under subsection (1) of Section 17 as stood at the relevant time an importer would enter imported goods and the proper officer without any undue delay examine and test the same. In terms of subsection (2) of Section 17 after such examination and testing, the duty leviable on such goods would be assessed. Subsection (5) of Section 17 interalia provided that where any assessment done under subsection (2) is contrary to the claim of the importer regarding valuation, classification, examination or concession of duty, the proper officer would pass a speaking order within 15 days from the date of assessment of bill of entry. Consonance with such statutory provisions contained in Section 17, Section 27, which pertains to the claim for refund of duty envisaged under Section (1) an application to be made by person claiming refund of duty or interest which is either paid by him pursuant to an order of assessment or borne by him, within the time prescribed alongwith prescribed documents to establish that the amount of duty and interest in relation to which the refund is claimed, has not been passed on to any other person. 25. In contrast to these unamended pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or borne by him, the amended Section 27 merely refers to the claim of refund of duty or interest paid or borne by the refund claimant. Thus, earlier reference to the refund of duty or interest paid pursuant to an order of assessment is now deleted. This would be in consonance with the changed procedure for clearance of imported goods as contained in Section 17 of the Act. 28. These statutory changes were noticed, analyzed and discussed by Delhi High Court and learned Single Judge of Madras High Court in case of Micromax Informatics Limited (supra). We are in respectful agreement with such analysis, the view expressed by the Courts and the ratio laid down therein. 29. Learned counsel for the Department, as noted earlier, had argued that the petition is premature since the competent authority has allowed the Petitioner to resubmit the refund claims after getting the bill of entries reassessed. She had also argued that the concerned authority had not examined other aspects of the refund claim. 30. In our opinion, both the contentions are not valid. Firstly, in the impugned order the Competent Authority has rejected the refund claims on the ground that, the Petitioner ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compelled by the department to pay higher duty contrary to the law laid down by the Supreme Court. There is absolutely no reason why the Department, subject to fulfillment of other legal requirements not refund such duty. Any other view, would amount to allowing the Union of India to collect tax without authority of law. Before the Petitioner can however claim full refund, the question of unjust enrichment may have to be examined. Counsel for the Petitioner had argued that all documents to establish that the duty element was not passed on to any other person were produced on record. Since the Competent Authority had not rejected the refund claim on this ground, he must have been satisfied with such documents. Counsel for the Department however contended that such question was not gone into by the authority while passing the impugned order. 32. It is true that the Competent Authority started with as many as 10 different objections in the nature of defects in the refund applications, but later on boiled down to only one of them noted above. However, when there is no clarity in the order itself, whether the Competent Authority has accepted the Petitioner's evidence as to establi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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