Shraddha Impex Vs C.C. (CESTAT Ahmedabad)
CESTAT Ahmedabad held that denial of refund claim of Anti-Dumping Duty unjustified as the Anti-Dumping Duty was not leviable at the relevant time as notification imposing the same expired.
Facts- The appellant had imported goods namely “Polypropylene and Propylene Co-polymer (CTH 39021000 and 390023000) from Singapore, Anti Dumping Duty on the said goods was levied by the Notification No. 119/2010-Cus dated 19.11.2010 (Sl. No.19) (as amended). The said notification was amended vide Notification No. 38/2014-Cus (ADD) dated 13.08.2014 to the effect that the said levy imposed on the said goods shall remain in force up to and inclusive on 29.07.2015, unless revoked earlier. No further extension of validity was granted.
Government of India reviewed Anti Dumping Duty on the subject goods and vide Notification No. 07/2016-Cus (Add), dated 08.03.2016 (Sl. 3 ) provided for Anti Dumping Duty at nil rate for the subject goods of CTH 3902-10000 and 3902-30000 produced and exported by “Exxon Mobil Chemical Asia Pacific”, thus, from 29.07.2015, there was no ADD. Thus after 08.03.2016, it was completely settled that there was no Anti Dumping Duty for subject goods of CTH 39021000 and 390023000 produced in Singapore and exported by “Exxon Mobil Chemical Asia Pacific” from Singapore.
In the mean while appellant being regular importer of the said goods had filed total 37 bills of entry between 31.07.2015 to 22.01.2016, and cleared the goods without any Anti Dumping Duty, however, the appellant voluntarily deposited total amount of Rs. 53,23,671/-, in anticipation of levy of Anti Dumping Duty. Since the notification was valid upto 29.07.2015 EDI system was not capturing Anti Dumping Duty, when importer had filed 37 bills of entry. Therefore, the assessment of bill of entry was escaped from mentioning levy of Anti Dumping Duty and payment thereof.
Later on appellant filed refund claim in respect of the said Anti Dumping Duty on 04.04.2016. The Deputy Commissioner of Customs sanctioned and paid refund of Anti Dumping Duty. Being aggrieved, the Assistant/deputy Commissioner of Customs ICD Khodiyar (District-Ahmedabad) filed appeal before the Commissioner of Customs (Appeals) Ahmedabad. In the department’s appeal before the Commissioner (Appeals), the learned Commissioner (Appeals) remanded the matter back to Assistant Commissioner/Deputy Commissioner, ICD vide order-in-Appeal dated 07.12.2017. The Assistant Commissioner ICD- Khodiyar in the de novo adjudication on the matter of refund rejected the refund claim vide order dated 06.12.2009. Commissioner (A) rejected the appeal. Being aggrieved, the present appeal is filed.
Conclusion- Held that any duty which is part and partial of the duty in regard to which the final assessment order was passed such final order needs to be challenged. However, in the fact of the present case as discussed in detail above with regard to the payment of Anti Dumping Duty, there is no final assessment order.
Held that in absence of any final assessment order in respect of payment of Anti Dumping Duty and particularly in the fact that the Anti Dumping Duty was not leviable at the relevant time. The appellant is legally entitled for the refund claim.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
The issue involved in the present case is that whether the filing of refund application without having challenged the assessment order under Section 17(4) of Customs Act, 1962 is valid or otherwise in the peculiar facts of the present case the Bills of Entry were finally assessed without mention of demand/ payment of Anti Dumping Duty for which the refund is sought for by the appellant.
2. The brief facts of the case are that the appellant had imported goods namely “Polypropylene and Propylene Co-polymer (CTH 39021000 and 390023000) from Singapore, vide 37 bills of entry Anti Dumping Duty on the said goods was levied by the Notification No. 119/2010-Cus dated 19.11.2010 (Sl. No.19) (as amended). Notification provided that Anti Dumping Duty shall be levied for a period of 5 years (unless revoked superseded or amended earlier) from the date of imposition of provisional Anti Dumping Duty i.e form 30.07.2009, and shall be payable in Indian currency. Further, it was amended vide Notification No. 38/2014-Cus (ADD) dated 13.08.2014 to the effect that the said levy imposed on the said goods shall remain in force up to and inclusive on 29.07.2015, unless revoked earlier. No further extension of validity was granted. Government of India reviewed Anti Dumping Duty on the subject goods and vide Notification No. 07/2016-Cus (Add), dated 08.03.2016 (Sl. 3 ) provided for Anti Dumping Duty at nil rate for the subject goods of CTH 3902-10000 and 3902-30000 produced and exported by “Exxon Mobil Chemical Asia Pacific”, thus, from 29.07.2015, there was no ADD. Thus after 08.03.2016, it was completely settled that there was no Anti Dumping Duty for subject goods of CTH 39021000 and 390023000 produced in Singapore and exported by “Exxon Mobil Chemical Asia Pacific” from Singapore. In the mean while appellant being regular importer of the said goods had filed total 37 bills of entry between 31.07.2015 to 22.01.2016, and cleared the goods without any Anti Dumping Duty, however, the appellant voluntarily deposited total amount of Rs. 53,23,671/-, in anticipation of levy of Anti Dumping Duty. Since the notification was valid upto 29.07.2015 EDI system was not capturing Anti Dumping Duty, when importer had filed 37 bills of entry. Therefore, the assessment of bill of entry was escaped from mentioning levy of Anti Dumping Duty and payment thereof. Later on appellant filed refund claim in respect of the said Anti Dumping Duty on 04.04.2016. Further with reference to seeking clarification the custom respondent vide letter dated 29.06.2016 received on 21.07.2016 by appellant, wherein it was clarified that they were directed to make payment of Anti Dumping Duty manually by challan and to cooperate with customs appellant has deposited amount equal to Anti Dumping Duty voluntarily, though it was not applicable after 29.07.2015. The appellant also requested to re assess all these 37 bills of entry and to sanction the refund of Anti Dumping Duty paid after 29.07.2015. The Deputy Commissioner of Customs ICD Khodiyar Ahmedabad, vide his order-in-original dated 30.09.2016 sanctioned and paid refund of Anti Dumping Duty of total Rs. 53,23,671/- The said order-in-original was reviewed and on authorization given by principle Commissioner of Customs (Ahmedabad), the Assistant/deputy Commissioner of Customs ICD Khodiyar (District-Ahmedabad) filed appeal before the Commissioner of Customs (Appeals) Ahmedabad. At the same time a protective demand SCN dated 13.06.2017 was issued by the Commissioner of Customs Ahmedabad proposing to recover amount of Rs. 53,23,671/- as erroneous refund. In the department’s appeal before the Commissioner (Appeals), the learned Commissioner (Appeals) remanded the matter back to Assistant Commissioner/Deputy Commissioner, ICD vide order-in-Appeal dated 07.12.2017. The Assistant Commissioner ICD- Khodiyar in the de novo adjudication on the matter of refund rejected the refund claim vide order dated 06.12.2009. Against this order-in-original dated 06.12.2019 the appellant filed the appeal before the Commissioner (Appeals), which was rejected by the Commissioner (Appeals) vide order-in-Appeal dated 12.02.2021, being aggrieved with this order-in-Appeal, the appellant filed the present appeal bearing No. C/10294/2021-CU(DB), in the meanwhile the principle Commissioner in the matter of SCN dated 13.06.2017 passed order-in-original No. AHM-CUSTM-000-COM-0015-19-20 dated 13.12.2019, whereby a recovery of the erroneous refund was confirmed. Being aggrieved with the said order-in-original, the appellant preferred Appeal No. C/10082/2021-DB. This appeal is consequential to the order-in-appeal dated 12.02.2021.
3. Shri P P Jadeja, learned Consultant appearing on behalf of the appellant at the out set submits that the appellant’s refund claim was rejected on the sole ground that the appellant have not challenged the assessment order of bill of entry. He submits that firstly at the time of assessment of bill of entry and clearance of goods no Anti Dumping Duty was leviable. It is on the behest of the department, the appellant have deposited the Anti Dumping Duty as per abundant precaution. Therefore, the payment of Anti Dumping Duty is not a part of final assessment of bill of entry. He invites our attention to the copy of bill of entry, wherein he has shown that the Anti Dumping Duty was neither part of the assessment of bill of entry nor the deposit was made in pursuance to the assessment of bill of entry. Therefore, the Anti Dumping Duty which was paid separately being not a part of assessment order there was no need to challenge the assessment as there was no assessment order in respect of the payment of Anti Dumping Duty. Therefore the entire basis of the department for rejecting the refund claim is incorrect and illegal. He submitted that the department has heavily relied upon the Hon’ble Supreme Court Judgment in the case of ITC LTD-2019 (368) ELT 216 (SC). However the judgment is applicable only in a case where there is a final assessment order and the same is under challenge which is not the case here. Therefore, the rejection of the refund claim is not supported by any law. He also strongly submits that in the present case at the relevant time there was no levy of ADD which is not disputed by the department also. The payment of ADD is not duty but only a deposit and in such case there is no need of challenge the payment of deposit as the same is not a statutory levy. He also submits that admittedly the appellant was not issued reassessment order on ADD. Hence since there is no reassessment of Bills of Entry particularly when there is neither any endorsement on Bills of Entry to the effect of reassessment nor any reassessment order was given to the appellant by following statutory provision of Section 17 (4) & (5) of Customs Act, 1962. Hence there is no question to challenge anything by filing appeal. In support he placed reliance on the following judgments:
