Uflex Limited Vs Commissioner of Customs (Import) (CESTAT Delhi)
Conclusion: Assessee had added the amount of Anti-dumping duty while self-assessing the customs duty liability which could not take the character of duty, therefore, the amount should not have been retained and was refundable.
Held: Assessee had imported 29 boxes of aluminum foil of 6.3 Microns vide Bill of Entry No 2535627 dated 21.09.2022 (BOE) declaring the assessable value as Rs 68,29,336/- on payment of basic customs duty, social welfare surcharge, integrated tax, & Anti-dumping duty (as per the Notification No. 51/2021-Cus (ADD). However, due to clerical error, the said Bill of Entry was self-assessed including Anti-Dumping Duty (ADD) as against the aforesaid Notification No. 51/2021 dated 16.09.2021 under which the Anti-Dumping Duty on Aluminium Foil of 6.3 Microns was exempted. Accordingly, assessee preferred an application seeking reassessment of impugned Bill of Entry dated 21.09.2022 and also another application seeking refund of excess duty paid amounting to Rs.7,14,018/- (Anti-Dumping Duty of Rs.6,05,100/- + differential IGST of Rs.1,08,918/-). However, Adjudicating Authority rejected the application for reassessment of BOE for the reasons that in terms of Section 128 of the Customs Act it should be filed before the appellate authority. The order was challenged before Commissioner (Appeals) which was dismissed. Tribunal observed that AO/appraiser herein could reassess the BOE only prior the good, imported were not cleared for home consumption. Therefore, it was an appeal only which was maintainable in terms of Section 128 of the Customs Act. Tribunal stated that the Notification No. 51/2021 exempted import of Aluminum Foil of 6.3 microns from payment of ADD. But apparently, assessee had added the amount of ADD while self-assessing the customs duty liability. Hence the ADD added to the amount of duty while self-assessing the BOE could not take the character of duty. It was held that in terms of Article 265 of Constitution of India, the authority couldn’t retain the said amount. The excess payment was rather apparent from BOE itself. The amount in question should not have been retained by the department was therefore refundable. Despite noting that the imported aluminium foil fell within the exemption under Notification No. 51/2021-Cus (ADD) and that an excess amount of Rs.7,14,018/- had indeed been paid, which substantively validated the claim.
