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C.C., New Delhi (Import & General) Versus M/s. S.R. Polyvinyl Ltd.

2016 (8) TMI 576 - CESTAT NEW DELHI

Anti-dumping duty - Refund claim – bill of entry – assessment of ADD - Held that: - the Respondent filed 8 Bills of Entry, out of which, seven were assessed under second check procedure. In the second check procedure, the Bills of Entry are assessed on the basis of the importer’s declaration without examining the goods which are examined at the time of clearance/giving out of charge from the docks. In this case, when the goods were examined, it was found that they were liable to ADD following wh .....

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of the respondent that the ADD was paid without assessment is totally untenable. It was paid very much in the process of assessment and clearance before allowing out-of-charge and clearance of the goods was allowed only after the payment of ADD. - Notification 70/2010-Cus, dated 25.06.2010 – set aside by CESTAT – no authority to levy ADD – Held that: - three Member Bench of CESTAT despite having set aside Notification No.70/2010-Cus, dated 25.06.2010, ordered (continued) levy and collection .....

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ORDER Appeals have been filed by Revenue against Order-in-Appeal dated 11.11.2014 in terms of which the Order-in-Original dated 17.12.2013 was set aside. 2. The brief facts of the case are that the respondent filed two refund claims relating to the Bills of Entry given in the following chart:- Sl. No. Bill of Entry No. Date TR-6 Challan No. Date Amount of ADD paid 1. 3251055 19.04.2011 361 21.04.2011 12,69,892.00 2. 3335501 27.04.2011 568 29.04.2011 11,96,472.00 3. 3516215 16.05.2011 860 19.05. .....

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ification 70/2010-Cus, dated 25.06.2010 imposing ADD was set aside by CESTAT vide its Misc. Order No.AD/M/21/12-Cus and Final Order No.AD/A/10/12-Cus, dated 06.07.2012 and therefore there was no authority of law to levy/collect ADD. The primary adjudicating authority did not agree with the contentions of the respondent and rejected the refund claims. However, these contentions of the respondent found favour with the Commissioner (Appeals), who set aside the Order-in-Original and allowed the refu .....

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.2011 3335501 27.04.2011 3516215 16.05.2011 4538914 03.09.2011 5903823 03.02.2012 6866287 18.05.2012 7124769 16.06.2012 Regarding Bill of Entry No.6880702 dated 21.05.2012 it was informed by the Dy. Commissioner that it was cleared through RMS where it is mandatory for the importer/ Customs broker to pay the ADD as per rule as it was self-assessed document. The ld. Departmental Representative claimed that the Dy. Commissioner of Customs also forwarded relevant pages of Bill of Entry on perusal o .....

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osited under separate challans under compulsion without being assessed on Bills of Entry and hence was a mere deposit. Therefore, it was required to be refunded. He cited the Supreme Court judgements in the cases of Priya Blue Industries Ltd. Vs. CC (Preventive) [2004 (172) ELT 145 (SC)] and CCE Vs. Flock (India) Pvt. Ltd. [2000 (120) ELT 285 (SC)] also CESTAT judgement in the case of Madhus Garage Equipment Vs. CC [2006 (198) ELT 388 (Tri.-Bang)]. (ii) Notification No.70/2010-Cus, dated 25.06.2 .....

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the respondent that ADD was deposited by it under separate challans under compulsion and was not assessed on the Bills of Entry, we have perused the records and submissions of Revenue. We find that the Respondent filed 8 Bills of Entry, out of which, seven were assessed under second check procedure. In the second check procedure, the Bills of Entry are assessed on the basis of the importer s declaration without examining the goods which are examined at the time of clearance/giving out of charge .....

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e it was mandatory for the importer or the customs broker to pay the ADD as per rule as it is a self-assessed document. In this case also, it is claimed by Revenue that the Dy. Commissioner of Customs forwarded the relevant pages of the Bill of Entry, from it was seen that the ADD was assessed. In any case, in this case also, out of charge was given only after certification of payment of ADD. In this factual matrix, the contention of the respondent that the ADD was paid without assessment is tot .....

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en done and goods cleared and additional duty was demanded subsequently while in the present case, the duty was assessed and recovered before the clearance/out of charge of the goods. 6. Coming to the second contention of the respondent that there was no authority to levy ADD on the impugned goods because the Notification 70/2010-Cus(ADD) in terms of which ADD was levied was set aside by CESTAT vide Final Order No.AD/A/10/12-Cus, dated 06.07.2012 (supra). We would like to mention that prima faci .....

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