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TMI Blog2023 (12) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... of Country of Origin in terms of Customs Tariff (Determination of Origin of Goods under the Comprehensive Economic Partnership Agreement between the Republic of India and Japan) Rules, 2011 and filed refund claim in terms of Notification No.55/2011-Cus (NT) dated 01.08.2011, which provides that the respondent is entitled for preferential tariff treatment and is entitled to file refund claims within twelve months from the date of filing of Bills of Entry - In this case, it is a fact that the respondent has filed the refund claim on production of Certificate of Country of Origin within twelve months of filing of Bills of Entry and claimed refund of excess duty paid in terms of Notification No.55/2011-Cus (NT) dated 01.08.2011. The decision of ITC Limited is not applicable to the present facts and circumstances of the case as at the time of filing of Bills of Entry, the appellant was not entitled to claim the refund claim of excess duty paid by them. Later on, when the respondent was able to get Certificate of Country of Origin, they filed refund claim in terms of Notification No.55/2011-Cus (NT) dated 01.08.2011, which permits the respondent to file the refund claim within 12 mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been issued retroactively in terms of the Notification No.55/2011-Cus (NT) dated 01.08.2011. 2.2 Initially, the said refund claims were entertained by the Adjudicating Authority, who held that the bar of unjust enrichment is not applicable to the facts of this case. The Certificate of Country of Origin is found in order, but rejected the refund claims on the basis of the judgment of the Hon ble Apex Court in the case of ITC Limited Vs, Commissioner of Central Excise, Kolkata IV reported in 2019 (360) ELT 216 (S.C.) holding that without challenge/modifying the assessment of Bills of Entry, the refund is not entertainable. The said order was challenged by the respondent before the ld.Commissioner (Appeals), who remanded back the matter to the adjudicating authority for reconsideration of refund claims on the strength of Certificate of Country of Origin issued retroactively since the overseas suppliers from Japan were not able to provide the Certificate of Country of Origin at the time of presenting the Bills of Entry. 2.3 In remand proceedings, the adjudicating authority again rejected the refund claims on the ground of unjust enrichment. 2.4 The respondent again challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances of the case, the decision of ITC Limited Vs, Commissioner of Central Excise, Kolkata IV reported in 2019 (360) ELT 216 (S.C.) is applicable or not ? 8. We find that the facts, which are not in dispute, are that the respondent filed 27 Bills of Entry for import of the goods from the country of Japan. At the time of assessment of Bills of Entry, the respondent paid the duty and got cleared the goods for home consumption. Thereafter, in terms of Customs Tariff (Determination of Origin of Goods under the Comprehensive Economic Partnership Agreement between the Republic of India and Japan) Rules, 2011, the respondent could able to obtain the Certificate of Country of Origin retroactively in force in terms of Notification No.55/2011-Cus (NT) dated 01.08.2011 and filed refund claims in terms of the said Notification. The contents of the relevant portion of the Notification are extracted herein below : 2. Application An application for a certificate of origin should be made by the exporter or its authorized agent, to the competent governmental authority of the exporting Party or its designees, together with appropriate supporting documents pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Box 8 of Appendix B to Annexure 2 the words CERTIFIED TRUE COPY : Provided further that the date of issuance and the certification number of the original certificate of origin should be indicated in the new certificate of origin. Provided that the new certificate of origin shall be valid during the original term of the validity of the original certificate of origin. As per the said Implementing Procedures, where the Certificate of Origin has issued for the time limit in Clause 3(a) above, the Certificate of Origin should be issued at the request of the exporter or its authorized agent, the Certificate of Origin may be issued retroactively in accordance with the laws and regulations of the exporting Party within twelve months from the date of shipment, in which case, it is necessary to indicate issued retroactively . Further, where an importer of an originating goods at the time of importation does not have in his possession a certificate of origin, the importer may, in accordance with the laws and regulations of the importing Party, apply for a refund of any excess Customs duties paid or deposit imposed as a result of the goods not having been granted preferential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating Authority has recorded his findings, which are as under : 9. Regarding Unjust Enrichment in terms of Section 27 (2) of the Customs Act, 1962, the importer has submitted a declaration mentioning that we hereby declare that we are the manufacturer importer and we use the imported goods to manufacture our final product Graphite Electrode, which we export all over the world. Hence the question of the amount of duty in relation to which such refund is claimed was paid by us and the incidence of such duty has not been passed on by us to any other person. It appears that the above said declaration of the importer appears to be true since petroleum coke and pitch coke are the basic raw materials for manufacturing of graphite Electrode. It is also observed that M/s. Graphite India Limited is the leading manufacturer of graphite Electrode in India and regularly exporting their final product i.e. Graphite Electrode to all over the world through ICD Durgapur. Again, the duty in relation to which such refund is claimed was paid by them and the incidence of such duty has not been passed on by them to any other person appears to be true since they, themselves use the import ..... X X X X Extracts X X X X X X X X Extracts X X X X
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