9911796707
TMI Blog2024 (12) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... its rightful depositor. The Hon ble Supreme Court in Mafatlal Industries Ltd. Ors. v. Union of India [ 1996 (12) TMI 50 - SUPREME COURT] had examined a similar matter relating to duty paid at the time of provisional assessment. The Hon ble Court held that ' Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B as the case may be. However, if the final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de pending finalisation of the provision assessment without filing an application for refund under Section 27 of the Customs Act, 1962? , in favour of the party and against the department. This being so, judicial discipline requires that all quasi-judicial authorities abide by the decision of the jurisdictional High Court. The impugned order hence merits to be rejected. In the case of the lone BoE where the original TR6 challan was not produced, if the same has still not been produced it may be dealt with by taking an indemnity bond as per departmental procedure, in the peculiar facts of this case. The impugned order is set aside - appeal is allowed. - HON BLE SHRI M. AJIT KUMAR , MEMBER ( TECHNICAL ) Shri N. Viswanathan , Advocate for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seas suppliers. The proper officer was hence under a statutory obligation to finalize the provisional assessments in respect of the 31 bills and should have returned the cash security deposited by them in the form of EDD, on his own. However, the authorities only finalized the provisional assessment approving the duty already paid by them but did not cancel the bond furnished by them nor returned the cash deposit furnished by them amounting to Rs.26, 79,183/- towards EDD/security deposits. Even though they were not obligated to file a refund claim under Section 27 of the Customs Act 1962 for the return of security deposit / EDD, they obliged the request of the officers and filed a claim for refund as advised on 09.03.2020 along with an inde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBEC Circular No. 5/2016-Customs dated 9th Feb, 2016, upon receipt of Investigative Report from the Special Valuation Branch for accepting the declared value under Rule 3 of the CVR, 2007, the Customs Stations where provisional assessments have been undertaken shall immediately proceed to finalise the same, without issuing a speaking order therein. This being so, as is the situation in the impugned case, the importer is not required to apply for the finalization of such provisional Bills of Entries. A natural corollary of which is that post the final assessment the deposit amount collected is no longer required to be held by the department and has to be returned to the person who made the deposit. 6. Article 265 of the Constitution of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9B(5) reagitating the issues already allowed, it would obviously be governed by Section 11B. It follows logically that position would be same in the converse situation. (emphasis added) Hence when in the case of provisionally assessed duty which was paid and subsequently found to be in excess, the refund was declared to be not covered by the refund provisions of the statute, it is even lesser so in the case of an am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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