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2019 (6) TMI 80 - CESTAT BANGALORERefund of excess customs duty - excess customs duty paid on account of imposition of 1% handling charges by the Customs authorities at the time of import of goods - the original authority rejected the refund claim mainly on the ground that the duty was paid by way of duty scrips which is not entitled to cash refund and secondly Notification 91/2017 dated 26.09.2017 is retrospective in nature. HELD THAT:- The appellant filed a refund claim of excess payment of Customs duty on the basis of law declared by the Supreme Court in the case of WIPRO LTD. VERSUS ASSISTANT COLLECTOR OF CUSTOMS & OTHERS [2015 (4) TMI 643 - SUPREME COURT] wherein it was held that imposition of customs duty on adhoc 1% handling charges is bad in law. Further after the decision of the Supreme Court the Revenue issued a Notification 91/2017-Cus. dated 26.09.2017 amending the law on valuation imposing the adhoc handling charges. Further the CBEC vide Circular No. 39/2017 dated 26.09.2017 has clarified that the amendment to the Valuation Rules will be from retrospective effect. The Commissioner’s (Appeals) directions to examine the claim of unjust enrichment when the matter has already been examined and decided in favour of the appellant and the Revenue is not under appeal on this aspect of the Order-in-Original is not tenable in law. The Commissioner of Customs (Appeals) cannot in its appellate jurisdiction review the order of the refund authority which is not in dispute and has attained finality - Further the finding of the Commissioner (Appeals) that the goods have not been cleared under protest and hence the refund application is not maintainable is clearly beyond the refund proceedings as the refund sanctioning authority has rejected the refund application only on the ground that Notification is prospective in nature. Moreover, the Commissioner (Appeals) failed to appreciate that Section 27 does not require that the goods should be cleared under protest for claiming refund of excess payment of duty. The matter is remanded to the original authority only for the purpose of verification of the documents and sanctioning of the refund - appeal allowed by way of remand.
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