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TMI Blog2019 (5) TMI 1624X X X X Extracts X X X X X X X X Extracts X X X X ..... efit of concessional rate of CVD at 1% provided under S. No 263A of Notification no. 12/2012-CE dated 17.03.2012 as amended by Notification No. 04/2014-CE dated 17.02.2014. The respondents while importing mobile phone parts, components and accessories during this said period paid CVD at tariff rate of 6% ad valorem (on MRP basis). After the decision of Hon'ble Supreme Court in the case of M/s SRF Ltd. Vs. Commissioner of Customs, Chennai (Civil Appeal No. 9440 of 2003) holding that the said excise exemption was applicable even in respect of imported goods (for CVD purposes) that the respondent submitted refund applications alongwith list of bills of entries filed between the period 19.02.2015 to 26.02.2015, CA Certificate and working sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has further erred in holding that under the amended Section 27, the authority cannot refuse to consider a refund application only because no Appeal had been filed against the assessment order and that self assessment is not an assessment order per se. The Commissioner(Appeals) has erred in distinguishing the decisions of the Hon'ble Supreme Court in the case of C.C.E. Kanpur Vs. Flock (India) Pvt. Ltd. 2000 (120) E.L.T. 285 (S.C.) and the case of Priya Blue Industries Ltd. Vs. Commissioner of Customs (Preventive) 2004 (172) E.L.T. 145 (S.C.) which are applicable even post the amendment of 2011. 5. While rebutting, Ld. Counsel for the appellant has submitted that the issue relating to applicability of exemption notification with identica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bills of entry are required in respect of the refund claim filed under Section 27 of the Customs Act, 1962. The requirement to furnish re-assessed bills of entry existed in the erstwhile Section 27 as it existed prior to 08.04.2011 before the introduction of self assessment. The relevant portion of the erstwhile Section 27 has been extracted below for ease of reference: "Section 27.... Claim for refund of duty - (1) Any person claiming refund of any duty - (i) paid by him in pursuance of an order of assessment; or (ii) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs..." 6.2 A perusal of the erstwhile S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Vs. Commissioner of Customs, Delhi 2010 (250) E.L.T. 30 held that a claim for refund would be maintainable in absence of an Appeal against bills of entry where the duty was paid inadvertently. "4. If therefore we refer to language of Section 27, it is more than clear that the duty which is paid is not necessarily pursuant to an order of assessment but can also be "borne by him‟. Clause (i) and (ii) of sub-section (1) of Section 27 are clearly in the alternative as the expression "or‟ is found in between clauses (i) and (ii). The object of section 27(i)(ii) is to cover those classes of case where the duty is paid by a person without an order of assessment, i.e in a case like the present where the assessee pays the duty in ig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 27 of the Customs Act, 1962 and which claim will fall under clause (ii) of sub section (1) of Section 27." 6.6 In the present case, Ld. Deputy Commissioner of Customs (Refund) passed two Orders-in-Original Nos. 886/PS/2016 and 887/PS/2016 both dated 30.06.2016 rejecting refund claims of the respondent on ground that the respondent has failed to submit any re-assessment orders or re-assessed bills of entry, relying on the judgments of C.C.E. Vs. Flock India Pvt. Ltd. reported at 2000 (120) E.L.T. 285 (S.C.) and Priya Blue Industries Vs. Commissioner reported at 2004 (172) E.L.T. 145 (S.C.). But in the case of Micromax Informatics Ltd. Vs. Union of India 2016 (335) E.L.T. 446 (Del.), the Hon'ble Delhi High Court distinguished the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m payment of CVD shall be available even in respect of imported goods for the reason that no question of availing cenvat credit under the Cenvat Credit Rules, 2002 arises where inputs are produced in a country other than India. Thus, the condition must be considered to be fulfilled. The aforesaid judgment was challenged by the Department by way of a review petition which were dismissed by the Apex Court vide Order dated 15.07.2016.
7. In view of entire above discussion we find that there is no legal lacunae in the impugned Order-in-Appeal dated 21.06.2018 and therefore we uphold the same and accordingly the Appeal of the Revenue is dismissed being without any merit.
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