TMI Blog2019 (6) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding Ukraine on CIF basis and cleared the goods on payment of Customs duty. Thereafter the appellant filed a refund application under Section 27 of the Customs Act 1962 seeking refund of excess customs duty paid on account of imposition of 1% handling charges by the Customs authorities at the time of import of goods. The refund authority issued a deficiency memo seeking additional information which was duly supplied by the appellant. Thereafter a show-cause notice dated 24.04.2018 was issued to the importer proposing to reject the refund claim on the following grounds: a. Duty was not paid in cash but through duty entitlement scrips and hence cash refund is not permissible. b. Notification 91/2017 dt. 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals). He further submitted that the Commissioner (Appeals) has erred in holding that the claim requires a fresh examination of all the points examined by the refund authority. He further submitted that this issue is no more res integra and has been settled by the Apex Court in the case of Wipro Ltd. Vs. Assistant Collector of Customs 2015 (319) E.L.T. 177 (SC) and the dismissal of the review petition in Commissioner Vs. Wipro Aces Ltd. 2016 (331) E.L.T. A37 (SC). He further submitted that in view of the Apex Court decision in Wipro , it has been settled that the imposition of 1% handling charges is in violation of the valuation provisions of Section 14 under the Customs Act, 1962. The introduction of 1% handling charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This issue has been settled by the Hon ble Delhi High Court in the case of Micromax Informatics Ltd. Vs. Union of India 2016 (335) E.L.T. 446 (Del.) wherein it was held that Section 27 does not require any claim of protest for filing a refund application and moreover refund application is itself a claim of dispute between the revenue and the tax payer. Therefore, the refund application cannot be rejected on the ground of lack of any protest letter by the applicant. He further submitted that the refund sanctioning authority has rejected the claim of refund on the ground that the duty has been paid through duty entitlement scrips which is not tenable under law. 4. On the other hand the learned AR defended the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the Wipro case. The Commissioner (Appeals) has not given any reason as to how the decision of the Supreme Court in the case of Wipro Ltd. is not applicable in the facts of the present case and has wrongly followed the decision of the Madras High Court which has been overturned by the Hon ble Supreme Court. Further I find that 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of customs duty in cash. Similar view was upheld in the case of CC, Jamnagar V. Reliance Industries (in Appeal No. C/186/2010-DB) Tri.-Ahmedabad wherein the Hon ble Tribunal held that utilization of DEPB scrip is as good as cash payment and should be treated on par with duty paid goods. He further submits that on the same analogy the Circular 6/2008, 27/2010 and 10/2012 issued in the context of refund under Section 27 of the Customs Act of special additional duty (as per Notification 102/2007-Cs.) directing re-credit of duty entitlement scrips in case of refunds has been held as void and struck down by the Delhi High in Allen Diesels India Pvt. Ltd. V. Union of India 2016 (334) E.L.T. 624 (Del.). Subsequent to this decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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