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TMI Blog2023 (4) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... . Rejection on the ground that Bill of Entry in regard to RSP based assessed goods has to be reassessed and refund claim has to be filed for the CVD paid by respondent under Section 27 of the Customs Act, 1962 - HELD THAT:- As per Notification No.102/2007 the scheme of exemption is by way of refund. The importer has to pay the duty (CVD) and then file refund claim when the goods have been sold in domestic market by paying VAT / Sales Tax. The scheme of exemption under notification No.102/2007 being in the nature of refund after payment of duty, it cannot be insisted that reassessment is required while filing refund. It may be true that respondent is eligible for benefit of Notification No.29/2010 by which they do not have to pay the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The view taken by the Commissioner (Appeals) is legal and proper - There are no grounds to interfere with the impugned order - Appeal filed by Revenue dismissed. - CUSTOMS APPEAL No.40747 of 2013 - FINAL ORDER NO.40317/2023 - Dated:- 28-4-2023 - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. M. AJIT KUMAR, MEMBER (TECHNICAL) Ms. Anandalakshmi Ganeshram, Superintendent (A.R) - For the Appellant None - For the Respondent ORDER The above appeal is filed by the department against the order passed by Commissioner (Appeals) who allowed the appeal filed by the importer (respondent). 2. Brief facts of the case are that M/s. Dimension Data India Ltd., (importer-respondent) filed an application for refund of 4% Speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 331330 dated 08.11.2011 was denied on the ground that the goods were sold on the same date of import as per the sales invoices, while actually the goods were physically removed from Air Cargo Customs only on the next day. 4. Against such order of rejecting part of the claim, the respondent filed appeal before Commissioner (Appeals). After considering the appeal filed by the respondent, the Commissioner (Appeals) held that the rejection of refund claim of Rs. 7,23,072/- on the ground that the Bills of Entries has to be reassessed cannot sustain and ordered for sanction of refund on this issue. With regard to the other two issues, the Commissioner (Appeals) held in favour of the Revenue. 5. Against the order passed by the Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the respondent through registered post. The notice has been returned as undelivered . The appeal is therefore taken up for disposal after hearing the A.R and on perusal of the records. 8. From the facts narrated above, it is brought out that an amount of Rs.7,23,072/- was rejected by the original authority on the ground that Bill of Entry in regard to RSP based assessed goods has to be reassessed and refund claim has to be filed for the CVD paid by respondent under Section 27 of the Customs Act, 1962. Before the Commissioner (Appeals), the respondent had argued that when there are two separate notifications which give benefit of exemption, the importer has the option to avail benefit of any of these notifications. The department canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption is by refund only after paying the duty. There is no question of reassessment when the assessment is in order. Reliance placed by Ld. A.R on the decision passed by the Tribunal in the case of National Institute of Ocean Technology is also misplaced. In that case, the importer had filed refund claim of CVD in terms of Notification No.51/96 dated 23.06.96. The notification under consideration was notification no.51/1996 which exempted both BCD and CVD. The EDI system failed to extend the CVD exemption benefit. The refund claim was filed for such CVD part of the duty paid. Thus the importer had paid the CVD and thereafter filed the refund claims for refund of excess duty paid by them. While rejecting the refund claim the original auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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