There is no necessity to challenge bill of Entry when there is no dispute on excess payment of duty.

PJ/Case Laws/2012-13/1216

Case:- ANUPAM PRODUCTS VERSUS COMMISSIONER OF CUS., ICD, TKD, NEW DELHI

Citation: - 2012 (282) E.L.T. 451 (Tri- Del.)

Issue: - There is no necessity to challenge bill of Entry when there is no dispute on excess payment of duty.

Brief fact: -.The Appellant imported electrolytic Tinplate sheets prima, for use as inputs in their own factory, who is manufacturing tin containers. They filed bill of entry for clearance of the same by discharging basic customs duty @ 10%. However, subsequently, they filed refund claim on 15-4-2005, for Rs. 99,234/- on the ground that BCD chargeable under customs heading 72.10 was @5% whereas they had paid BCD @ 10%.

The said refund claim was adjudicated by the Assistant Commissioner. He sought verification from the concerned appraising group, who clarified that the goods attracted @ 5% BCD in terms of Notification No. 21/2002- Cus., dated 1-3-2002, whereas the appellant have actually paid higher BCD. In view of the above, he sanctioned the refund claim of Rs. 85,584/-, after taking note of the quantum of Modvat credit availed by the appellant. The said order of the Assistant Commissioner was appealed against by the Revenue before the Commissioner (Appeals).

The appellant authority vide his impugned order allowed the Revenue's appeal on the sole ground that the assessment order was not put to challenge by the importer and as such, in terms of law declared by the Hon'ble Supreme Court in the case of Priya Blue Industries v. CCE - 2004 (172) E.L.T. 145 (S.C.), the refund cannot be sanctioned to the appellant. The said order of the Commissioner (Appeals) is challenged before Tribunal.

Reasoning of judgment: - The Tribunal found that the rate of basic customs duty, in respect of imported goods was @ 5% whereas the appellant has discharged their duty liability @ 10%. The sole ground on which the Commissioner (Appeals) set aside the Assistant Commissioner's order was that the importer had not filed any appeal against the assessment order and has directly filed the refund claim. He has observed that without setting aside the assessed bill of entry, refund claimed by the appellant, cannot be sanctioned.

The law on the issue stands declared by the Hon'ble Supreme Court in the case of Priya Blue Industries Ltd. However, applicability of the said declaration of law by the Supreme Court was examined by the Hon'ble Delhi High Court in the case of Aman Medical Products Ltd. v. CC, Delhi - 2010 (250) E.L.T. 30 (Del.), wherein it was held that the assessment order is required to be challenged by the assessee when there is dispute or ‘lis” between the importer and the Revenue. In the absence of any adversarial assessment order, non filing of appeal against the assessed bill of entry, where there is no 'lis' between the importer and the Revenue at the time of clearance of the goods, will not debar importer of his right to file refund claim. The above finding stand arrived at by the Hon'ble Delhi High Court after examining the provision of Section 27 of Customs Act, 1962. In the present case also there is no 'contest' or 'us' between the appellant and the department at the time of clearance of the goods. The payment of higher rate of duty by the appellant is by way of inadvertent mistake without taking the benefit of notification. Admittedly, the benefit of said notification, was available to the importer. As such, it is clear case of payment of higher duty due to ignorance. Identical facts were available in the case of Aman Medical Products Ltd. decided by the Delhi High Court. As such, Tribunal are of the view that the appellants are entitled to refund of excess duty paid by them. Accordingly, the impugned order is set aside and the order of the original authority is restored.

Decision: -Appeal allowed.

Comment:-This is very important decision. Normally the department always asks for challenging the assessment when the refund is claimed. But this decision as well as Delhi High Court decision has clearly brought out the position that the assessment order is to be challenged when there is dispute between assessee and the department. When there is no dispute then there is no need to file appeal and refund can be claimed directly. Hence it is very good decision for the importers.

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PJ/Case Laws/2012-13/1216

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