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TMI Blog2023 (11) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ADD. Thus after 08.03.2016, it was completely settled that there was no Anti Dumping Duty for subject goods of CTH 39021000 and 390023000 produced in Singapore and exported by Exxon Mobil Chemical Asia Pacific from Singapore. In the mean while appellant being regular importer of the said goods had filed total 37 bills of entry between 31.07.2015 to 22.01.2016, and cleared the goods without any Anti Dumping Duty, however, the appellant voluntarily deposited total amount of Rs. 53,23,671/-, in anticipation of levy of Anti Dumping Duty. Since the notification was valid upto 29.07.2015 EDI system was not capturing Anti Dumping Duty, when importer had filed 37 bills of entry. Therefore, the assessment of bill of entry was escaped from mentioning levy of Anti Dumping Duty and payment thereof. Later on appellant filed refund claim in respect of the said Anti Dumping Duty on 04.04.2016. Further with reference to seeking clarification the custom respondent vide letter dated 29.06.2016 received on 21.07.2016 by appellant, wherein it was clarified that they were directed to make payment of Anti Dumping Duty manually by challan and to cooperate with customs appellant has deposited amount eq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the payment of Anti Dumping Duty is not a part of final assessment of bill of entry. He invites our attention to the copy of bill of entry, wherein he has shown that the Anti Dumping Duty was neither part of the assessment of bill of entry nor the deposit was made in pursuance to the assessment of bill of entry. Therefore, the Anti Dumping Duty which was paid separately being not a part of assessment order there was no need to challenge the assessment as there was no assessment order in respect of the payment of Anti Dumping Duty. Therefore the entire basis of the department for rejecting the refund claim is incorrect and illegal. He submitted that the department has heavily relied upon the Hon ble Supreme Court Judgment in the case of ITC LTD-2019 (368) ELT 216 (SC). However the judgment is applicable only in a case where there is a final assessment order and the same is under challenge which is not the case here. Therefore, the rejection of the refund claim is not supported by any law. He also strongly submits that in the present case at the relevant time there was no levy of ADD which is not disputed by the department also. The payment of ADD is not duty but only a depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC, Tuticorin Vs. Tamil Nadu Generation Distribution Corporation Ltd 5. We have carefully considered the submissions made by both the sides and perused the records. We find that the sole ground for rejection on the refund claim of the appellant is that the appellant have not challenged the assessment order of bills of entry, therefore, the appellant is not entitled for the refund of Anti Dumping Duty paid by them. From the record, we find 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. For the ready reference the sample copy of the bill of entry is scanned below: From the perusal of the above 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. We also concur with the following views expressed by the sanctioning authority while sanction of refund claim: 12. The claimant was asked to get the Bills of Entry reassessed as it appeared that the refund claim is not maintainable when the claimant did not challenge the Bills of Entry assessed finally. The assessee in reply vide his letter received on 21.07.2016 submitted that the ADD is not assessed in any of the bills of entry under claims of refund. He further submitted that they have made payment of ADD manually by challan nos, and the same may be considered as deposits with the department. I find that the bills of entry are assessed finally having no ADD is assessed therein and the claimant paid the ADD manually to avoid any liability/consequences, that may arise at later stage. In view thereof, I find the Bills of Entry need not re-assessed and the ADD paid by the claimant is refu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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