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Where duty is mistakenly paid in excess, Assessee is entitled to refund

Cipla Ltd.(the Appellant)imported Fermoterol Fumarate and filed a Bill of Entry dated March 31, 2010 for home consumption. The Appellant paid excess CVD at 10% instead of effective rate of 4% in terms of unconditional exemption Notification No. 4/2006-CE dated March 1, 2006 (the Notification) and therefore filed a refund claim Rs. 1,33,779/- towards the excess paid duty.

Where the duty is mistakenly paid in excess, the Assessee is entitled to refund – No need to challenge the assessment of the Bill of Entry

Cipla Ltd.(the Appellant)imported Fermoterol Fumarate and filed a Bill of Entry dated March 31, 2010 for home consumption. The Appellant paid excess CVD at 10% instead of effective rate of 4% in terms of unconditional exemption Notification No. 4/2006-CE dated March 1, 2006 (the Notification) and therefore filed a refund claim Rs. 1,33,779/- towards the excess paid duty.

The Assistant Commissioner of Customs relying on the ratio of the judgement in the case of CCE Vs. Flock India [2000 (120) ELT 285 (SC] and Priya Blue Industries Ltd. [2004 (192) ELT 145 (SC)] rejected the refund claims on the ground that the Appellant has not challenged the assessment of Bill of entry. On appeal being filed,the Ld. Commissioner (Appeals) upheld the order of the Assistant Commissioner. Being aggrieved, the Appellant preferred an appeal before the Hon’ble CESTAT, Mumbai.

The Hon’ble CESTAT, Mumbai relying on the Aman Medical products Ltd. Vs. CC, [2009-TIOL-566-HC-DEL-CUS] (Aman Medical Case) held as under:

  • In the present case, there is no dispute that at the material time of import the effective rate of CVD was 4% by the Notification and the Appellant has paid excess duty of 10% by oversight. Further, the judgments relied upon by the lower Appellate Authority have been distinguished by the Hon’ble Apex Court in Aman Medical Case;
  • In light of the judgement of the Hon’ble Delhi High Court in the Aman Medical Case, it is settled that where the duty was mistakenly paid in excess, there is no need to challenge the assessment of the Bill of Entry. The refund of excess paid duty is admissible;
  • Although the Revenue in the instant case contended that the judgement in Aman Medical Case has been challenged before the Hon’ble Supreme Court, but it is observed that though the Revenue has filed appeal before the Supreme Court, the Apex Court has not granted the stay of operation of the order of the Hon’ble High Court of Delhi. Therefore, the judgement of the Delhi High Court in case of Aman Medical Case is binding.

Therefore, the Hon’ble Tribunal allowed the refund of excess paid CVD to the Appellant with an instruction that the sanctioning Authority must verify the aspect of unjust enrichment before sanctioning the refund.

(Bimal Jain, FCA, FCS, LLB, B.Com (Hons), Mobile: +91 9810604563, Email: bimaljain@hotmail.com)

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