Case Law Details
Paradeep Phosphates Limited Vs Commissioner of Central Excise (CESTAT Kolkata)
CESTAT Kolkata held that benefit of preferential rate vide Notification 53/2011-Cus dated 01.07.2011 not deniable as Certificate of country of origin from Malysia Chamber of Commerce for subsequent import of identical goods afterward submitted.
Facts- The appellant filed a Bill of Entry under EDI System for payment of Customs duty on import of Anhydrous Ammonia. Consequent upon approval of the self-assessment of the Bill of Entry under Risk Management System and upon payment of Customs duty, the clearance of such goods was allowed for home consumption. Thereafter, the appellant filed refund claim application stating that the import of Anhydrous Ammonia of Malaysian Origin is liable to preferential rate of Basic Customs Duty @ 2% under Notification No.53/2011-Cus dated 01.07.2011 as amended, whereas they have paid duty @ 5% on such goods, which is refundable to them.
The show-cause notices were issued to the appellant on the ground that as the Bills of Entry have been finally assessed in EDI System and the appellant has not challenged the assessment of duty done through RMS in EDI and paid duty so assessed through TR-6 Challan. Since the appellant has not challenged the assessment order, the claim for refund of duty is not admissible. Commissioner (Appeals) confirmed the orders of the adjudicating authority rejecting refund claims. Being aggrieved, the present appeal is filed.
Conclusion- The only objection raised by the Revenue is that the said Certificate of Origin is not as per the format under exemption Notification and not issued by the Malysia Chamber of Commerce. We find that the appellant has produced the Certificate of Origin issued by the manufacturer/supplier and for the subsequent imports, the appellant has been able to produce the Certificate issued by the Malysia Chamber of Commerce from the same supplier of the identical goods under the Bills of Entry in question. Therefore, the appellant has subsequently complied with the condition of the Notification.
Held that the benefit of Notification 53/2011-Cus dated 01.07.2011, cannot be denied to the appellant as the appellant has complied the subsequent condition of the Notification.
FULL TEXT OF THE CESTAT KOLKATA ORDER
Both the appeals are having a common issue, therefore, both are disposed off by a common order.
2. The facts of the case are that the appellant filed a Bill of Entry under EDI System for payment of Customs duty on import of Anhydrous Ammonia. Consequent upon approval of the self-assessment of the Bill of Entry under Risk Management System and upon payment of Customs duty, the clearance of such goods was allowed for home consumption. Thereafter, the appellant filed refund claim application stating that the import of Anhydrous Ammonia of Malaysian Origin is liable to preferential rate of Basic Customs Duty @ 2% under Notification No.53/2011-Cus dated 01.07.2011 as amended, whereas they have paid duty @ 5% on such goods, which is refundable to them.
2.1 The show-cause notices were issued to the appellant on the ground that as the Bills of Entry have been finally assessed in EDI System and the appellant has not challenged the assessment of duty done through RMS in EDI and paid duty so assessed through TR-6 Challan. Since Tthe appellant has not challenged the assessment order, the claim for refund of duty is not admissible as held by the decision of the Hon’ble Apex Court in the case of M/s Priya Blue Industries Limited Vs. Commissioner of Customs reported in 2004 (2) ELT 145 (S.C.) and copies of Bills of Entry, TR-6 challan evidencing payment of duty, original copy of Certificate of Origin and the documentary evidences, establishes that their eligibility of refund claim are not filed.
2.2 Thereafter, the matter was adjudicated and the adjudicating authority recorded that in view of self assessment regime w.e.f. 08.04.2011, the case of Priya Blue Industries Limited (supra) is not applicable in their case as there is no as there is no assessment order in regard to filing of appeal against the instant case. He further examined the refund claim and held that the certificate submitted by the appellant, has been issued by the manufacturer of the goods in question and the appellant is required to submit the certificate of origin issued by the Issuing Authority designed by the Government of Malaysia as per the format as set out in Annexure IV to the Customs Tariff (Determination of Origin of Goods under preferential Trade Agreement between the Government of Repubic of India and Malysia) Rules, 2011. Therefore, the refund claims are not maintainable.
2.3 The said orders were challenged before the ld. Commissioner (Appeals), who confirmed the orders of the adjudicating authority rejecting refund claims.
2.4 Against the said orders, the appellant is before us.
3. The ld. Counsel appearing on behalf of the appellant submits that the appellant produced the Certificate of Origin issued by the manufacturer of the goods and it is not disputed by the Department that the said Certificate is not genuine and the appellant has complied with the substantial condition of the Notification. Therefore, the benefit of the same cannot be denied to the appellant. He further submits that the subsequent import from the same supplier, on production of the Certificate of Origin, the clearance has been allowed to the appellant and the benefit of the exemption Notification was granted. Therefore, as the goods have been imported by the same supplier, who is issued the Certificate of Origin initially and later on, produced the Certificate of country of origin from Malysia Chamber of Commerce, for subsequent imports, the benefit of Notification be granted and the refund be allowed.
4. With regard to issue that the appellant has not been challenged the assessment order. It is his contention that the earlier Bills of Entry was to be filed physically, but during the impugned period, the appellant has filed Bill of Entry under EDI System and approval for assessment of Bills of Entry was granted under Risk Management Therefore, the decision of Priya Blue Industries Limited (supra), is not applicable in the present case. To support, he relied on the decision of the Hon’ble Delhi High Court in the case of Micromax Informatics Limited Vs. Union of India reported in 2016 (335) ELT 446 (Del.). He also relied on the decision of this Tribunal in the case of Commissioner of Customs, Visakhapatnam Vs Vedanta Aluminium Limited reported in 2019 (366) ELT 933 (Tri.-Hyd.). Therefore, he prayed that the impugned orders are to be set aside and the refund be allowed.
5. On the other hand, the ld. A. R. for the Revenue, supported the impugned orders and submitted that the appellant has not produced the Certificate of Country of Origin issued by the Malysia Chamber of Commerce. In that circumstances, the appellant has not complied with the condition of Notification. Furthermore, he submits that in view of the decision of the Hon’ble Supreme Court in the case of ITC Limited Vs. Commissioner of Central Excise, Kolkata-IV reported in 2019 (368) ELT 216 (S.C.) for challenging the adjudication order in respect of assessment of Bill of Entry, the refund claim cannot be entertained.
6. Heard both the parties and considered the submissions.
7. We find that initially, the show-cause notice was issued to the appellant alleging that as the appellant has not challenged the assessment of Bills of Entry in terms of the decision of the Hon’ble Apex Court in the case of M/s Priya Blue Industries Limited (supra), therefore, the refund claim is not maintainable without challenging of the assessment of Bill of Entry and in the case of ITC Limited (supra), we find that for both the cases, the period involved is prior to self assessment regime i.e. prior to 08.04.20 11. Therefore, the decisions of the said cases are not applicable to the facts and circumstances of the present case. Admittedly, in the case in hand, the Bills of Entry was filed through the EDI System and approval of the self assessment was done under Risk Management System. Therefore, the said decision of the Hon’ble Apex Court is not applicable to the facts and circumstances of the case. In that view, the ground that the appellant has not challenged the assessment of the Bill of Entry, is not sustainable. Further, we find that at the time of issuance of show-cause notice, the issue of non-submission of Certificate of country of origin, was not disputed but during the adjudication order proceedings, the appellant produced the Certificate of Origin issued by manufacturer of the said goods supplier, which is extracted below :
The only objection raised by the Revenue is that the said Certificate is not as per the format under exemption Notification and not issued by the Malysia Chamber of Commerce. We find that the appellant has produced the Certificate of Origin issued by the manufacturer/supplier and for the subsequent imports, the appellant has been able to produce the Certificate issued by the Malysia Chamber of Commerce from the same supplier of the identical goods under the Bills of Entry in question. Therefore, the appellant has subsequently complied with the condition of the Notification.
9. In view of the above circumstances, the benefit of Notification No.53/2011-Cus dated 01.07.2011 , cannot be denied to the appellant as the appellant has complied the subsequent condition of the Notification.
10. In that circumstances, we hold that the appellant is entitled for refund claim as prayed by the appellant.
11. In these terms, after setting aside the impugned orders, we allow the appeals filed by the appellant.
(Operative part of the order was pronounced in the open court)
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