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TMI Blog2024 (6) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant will be entitled to refund of the amount which is paid by him in excess of the amount of duty finally assessed. Section 18 (4) clearly provides that the amount refundable in terms of Section 18 (2) should be refunded to the appellant within three months of finalization of assessment. The Section 18 (5) is independent provision and not sub servant to Section 27 of the Customs Act, 1962. There are no merits in the impugned order, as it has applied the limitation provided under Section 27 of the Customs Act, 1962 for rejecting the refund of cash security made by the appellant for provisional assessment and which became refundable subsequent to finalization of assessment. The refund should have been made as per the provisions of Section 18 (4) of the Customs Act, 1962. Appeal allowed. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Atul Gupta, Advocate for the Appellant Shri Manish Raj, Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Appeal No.NOI-CUSTM-000-APP-1080-19-20 dated 05/11/2019 passed by Commissioner (Appeals) Customs, Central Goods Services Tax, Noida. By the impugned order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was deemed to be related to their foreign supplier in terms of Rule 2(2) of the Customs Valuation (Determination of value of Imported Goods) Rules, 2007. The department referred the matter to SVB Mumbai for investigation and assessed the Bills of entry provisionally after getting deposited of 1% EDD amounting to Rs.57,40,416/- till the finalization of transaction value by the SVB, Mumbai. The above deposits represented provisional payment of duty and all the assessments were made provisionally. The Assistant Commissioner, SVB, Mumbai passed the aforesaid SVB Order No.1322/AC/SVB/AB/DAB/2014-15 dated 16.03.2015 in the matter and accordingly. Competent authority of Customs House Noida finalized the bill(s) of entry in the month of November 2016 and January 2017. 7. I observe that the appellant in their grounds of appeal has alleged that the Bill(s) of entry have been finalized in violation of the principles of Natural Justice. I find that there is no provision of issuance of show cause notice or granting any opportunity of personal hearing before the finalization of the provisional assessments under Section 18 of the Customs Act'1962. Further, aforesaid Bills of ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claims made before the departmental authorities- Limitation provided under Customs Act/Central Excise Act or the Rule made there under applicable-Authorities functioning under an act bound by the provisions . I find that the ratio of the above judgments are squarely applicable in this case, hence I also place reliance on the same holding that the period of limitation as prescribed under Section 27 of the Customs Act'1962 in the case of refund application of the appellant is applicable. 9. I observe that the appellant filed their Refund claim on 01.05.2018 after final assessment of Bill (s) of entry in the month of November 2016 and January 2017. In the instant case, the claim was filed by the appellant on 01.05.2018 after lapse of one year of reassessment of Bills of entry, though under Section 27 of the Customs Act, 1962, the refund claim was required to be filed within one year. For better clarification, I reproduce the relevant para of Section 27 of Customs Act'1962 . (IB)(b) where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any Court, the limitation of one year shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 27 of the Customs Act even though High Court itself may not be bound by the time limit of the said section-Articles 226 and 227 of the Constitution of India 4.3 However we find that impugned order has been passed without taking the note of fact that the amount claimed as refund was not the amount of duty or interest deposited by the appellant. The said amount was deposited as security deposit as directed by the department for assessing the goods provisionally when the matter was under consideration of Special Valuation Branch (SVB). Finally SVB accepted the Value as declared by the appellant and hence the security deposit became refundable to the appellant. 4.4 As the amount was deposited as cash security, subsequent to finalization of assessment the refund of cash security should have been done automatically by the revenue. 4.5 The assessment are made provisional under the Custom Act, 1962 in terms of Section 18 which is reproduced below: Section 18. Provisional assessment of duty. - (1) Notwithstanding anything contained in this Act but without prejudice to the provisions of section 46,- a. where the importer or exporter is unable to make self-assessment under sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e paid an interest on such un-refunded amount at such rate fixed by the Central Government under section 27A till the date of refund of such amount. (5) The amount of duty refundable under sub-section (2) and the interest under sub-section (4), if any, shall, instead of being credited to the Fund, be paid to the importer or the exporter, as the case may be, if such amount is relatable to: a. the duty and interest, if any, paid on such duty paid by the importer, or the exporter, as the case may be, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; b. the duty and interest, if any, paid on such duty on imports made by an individual for his personal use; c. the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; d. the export duty as specified in section 26; e. drawback of duty payable under sections 74 and 75.] 4.6 The cash security made by the appellant was in lieu of any duty that would have become due on account of finalization of assessment in terms of the rule 18 (2). The rule clearly provides t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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