Drive India Enterprises Solutions Limited Vs Commissioner of Customs (Import) (CESTAT Mumbai)
CESTAT Mumbai held that order rejecting refund of excess CVD [Countervailing duty] paid on import of mobile handsets not sustainable since amendment of bill of entry under section 149 of the Customs Act is allowed mode of modifying assessment.
Facts- The appellants is engaged in providing freight, logistics, warehousing and other related services. They had imported mobile handsets through Air Cargo Complex, Sahar, Mumbai during January, 2015 to March, 2015 in eight consignments for which they had filed the various Bills of Entry (B/Es) in which they had classified the import goods under Customs Tariff Item (CTI) 8517 1290 of the First Schedule to the Customs Tariff Act, 1975 and cleared such goods on payment of applicable duties of customs. The applicable rate of Additional duty of Customs (CVD) being equivalent to excise duty leviable on mobile phones upto 28.02.2015 was 6% and the manufacturers had an option to pay the concessional rate of 1% in terms of Sl. No. 263A of amending Notification No. 12/2015-C.E. dated 01.03.2015.
The rate of CVD/excise duty w.e.f. 01.03.2015, was increased to 12.5%. In terms of Circular No. 37/2001-Customs dated 18.06.2001 importers were not eligible to claim the concessional 1% duty as they cannot avail CENVAT Credit. By relying on this circular, the appellant had paid the CVD on imported mobile phones during 20.01.2015 to 25.03.2015 at standard 12.5%. However, subsequently on the basis of judgement delivered by the Hon’ble Apex Court, the appellants realized that were also entitled to benefit of Notification No. 12/2015-C.E. dated 01.03.2015 at Sl. No.263A i.e., 1% CVD. Therefore, they approached the jurisdictional customs authorities and got the self-assessment at higher rates of CVD, again re-assessed by the Customs appraising group and had applied for refund of excess CVD paid/borne by them. The jurisdictional Assistant Commissioner of Customs had sanctioned a refund of Rs.32,93,132/-. Commissioner (A) allowed the appeal of the department and set aside the refund sanction order of the original authority. Being aggrieved, the present appeal is filed.
