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2016 (3) TMI 431 - DELHI HIGH COURT

2016 (3) TMI 431 - DELHI HIGH COURT - 2016 (335) E.L.T. 446 (Del.) - Clim of refund - Excess payment of CVD at the time of import - Rejection of refund claim on the groun of maintanability filed under Sections 27(1)(a)/ 27(1)(b) of the Customs Act, 1962 - Petitioner claimed that it was liable to pay 1% CVD as per Notification No. 12/2012 CE dated 17th March 2012, as amended by Notification No. 4/2014 and further amended by Notification No. 12/2015-CE dated 1st March 2015 whereas paid 6% CVD an .....

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2011, particularly if such duty has not been paid under protest. In any event, after 8th April 2011, as noticed hereinbefore, as long as customs duty or interest has been paid or borne by a person, a claim for refund made by such person under Section 27(1) of the Act as it now stands, will have to be entertained and an order passed thereon by the authority concerned even where an order of assessment may not have reviewed or modified in appeal. Therefore, the order rejecting the refund claim of t .....

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d Mr. Gyanesh Bhardwaj, Advocates, Mr. Satish Kumar, Senior Standing Counsel for Customs ORDER Dr. S. Muralidhar, J. 1. These three writ petitions by Micromax Informatics Limited ( MIL ) challenge three orders dated 21st December 2015 passed by the Assistant Commissioner (Refund) in the office of the Commissioner of Customs, Air Cargo Export, Refund Section, New Delhi rejecting the refund claims filed by the Petitioner in respect of the bills of entry (B/Es) filed by it for the months of August .....

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e to Serial No. 263A of Notification No. 12/2012 - CE dated 17th March 2012, as amended by Notification No. 4/2014 and further amended by Notification No. 12/2015-CE dated 1st March 2015, applicable to mobile phones which provided for an effective rate of duty of 1% CVD for mobile phones provided that no Central Value Added Tax ( CENVAT ) credit on input or capital goods have been availed. A reference was made to the decision of the Supreme Court in M/s. SRF Industries v. Commissioner of Customs .....

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s of payment of customs duty, the requisite certificate and affidavits of declarations etc. It is clarified by Mr. Tarun Gulati, learned counsel for the Petitioner, that although the refund claim states that the CVD had been paid under protest, there was no endorsement to that effect on the challans. Accordingly, the aforementioned refund claims should be considered to have been made on the basis that the CVD was paid in excess by the Petitioner without protest. 4. A hearing was afforded to the .....

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appeal since there was in fact no assessment order in the first place. 5. In the impugned order while rejecting the refund claim, the Assistant Commissioner (Refund) observed that the claimant has filed the refund of duty on the bills of entry, which are already assessed . According to the Assistant Commissioner, once the assessment order was passed, duty was payable in terms thereof and unless such assessment order was reviewed under Section 28 of the Act or modified in an appeal. Relying on t .....

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he Customs. 7. It requires to be noticed that the decision in Priya Blue Industries Ltd. v. Commissioner of Customs (Prevention) (supra) was rendered by the Supreme Court in respect of Section 27 of the Act as it stood prior to 8th April 2011. Factually the said decision does not apply to the facts of the present case since the said decision notes at the outset that the Petitioners have imported a ship for breaking purposes. They filed a Bill of Entry. The amount of duty payable was assessed. It .....

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aw framed by the Court in the appeal filed by the Assessee against an order of refusal of refund read as under: Whether non-filing of appeal against the assessed Bill of Entry in which there was no lis between the importer and the Revenue at the time of payment of duty will deprive the importer of his right to file refund claim under Section 27 of the Customs Act, 1962? 9. The above question was answered in the negative. Analysing Section 27 of the Act, as it then stood, the Court noticed that i .....

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in ignorance of a notification which allows him payment of concessional rate of duty merely after filing a Bill of Entry. In fact, such a case is the present case in which there is no assessment order for being challenged in the appeal which is passed under Section 27(1)(i) of the Act because there is no contest or lis and hence no adversarial assessment order. 10. The Court in Aman Medical Products Limited (supra) also took note of and held that the decisions in Collector of Central Excise v. F .....

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of Section 27 of the Act has undergone a change. The relevant portions of Section 27, as amended with effect from that date, read as under: 27. Claim for refund of duty.- (1) Any person claiming refund of any duty or interest,- (i) paid by him; or (ii) borne by him, may make an application in such form and manner as may be prescribed for such refund of to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty .....

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interest has been paid under protest: [Provided also that where the amount of refund claimed is less than rupees one hundred, the same shall not be refunded.] Explanation. - For the purposes of this sub-section, the date of payment of duty or interest in relation to a person, other than the importer, shall be construed as the date of purchase of goods by such person. (1A) .... (1B).... (2) If, on receipt of any such application, the [Assistant Commissioner of Customs or Deputy Commissioner of Cu .....

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d to the applicant, if such amount is relatable to- (a) the [duty and interest, if any, paid on such duty], paid by the importer [or the exporter, as the case may be], if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person; (b) the [duty and interest, if any, paid on such duty], on imports made by an individual for his personal use; (c) the [duty and interest, if any, paid on such duty] borne by the buyer, if he had not passed on the inci .....

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nment the incidence of [duty and interest, if any, paid on such duty] has not been passed on by the persons concerned to any other person. 12. An important change that has been made is that a person can now claim refund of any duty or interest as long as such duty or interest was paid or borne by such person. The conditionality of such payment having been made pursuant to an order of assessment does not exist. Secondly, once an application is made under Section 27(1) of the Act, it is incumbent .....

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ar shall not apply in such event. In other words, whether or not the duty is paid under protest once an application for refund is made in the requisite manner and form as prescribed, it is incumbent on the authority to deal with such an application. Where there is an assessment order, the authority will take it into account in deciding the application for refund. If such assessment order has been reviewed or modified in appeal such further order will obviously be taken into account. In other wor .....

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