TMI Blog2020 (3) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... . The holder of the scrip could utilize these scrips for payment or discharge of duty liability at the time of importation of goods. Further the Bill of Entry for home consumption filed at the time of clearance of goods depicts the list of scrips utilized for payment of customs duty arising on the import of goods. Further I find that there is no provision anywhere under the Customs Act to re-credit these duty scrips at the time of refund. There is no infirmity in the order passed by the Commissioner (Appeals) that directs refund of duty by RTGS - Appeal dismissed - decided against Revenue. - Customs Appeal No. 51955 of 2019 - FINAL ORDER NO. 50438/2020 - Dated:- 24-2-2020 - HON BLE MR. JUSTICE DILIP GUPTA, PRESIDENT AND HON BLE MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri Vivek Pandey, Authorized Representative of the Department Shri B.L. Narasimhan and Shri Rachit Jain, Advocate for the Respondent ORDER JUSTICE DILIP GUPTA The Commissioner of Customs has filed this Appeal to assail the order dated 6 May, 2019 passed by the Commissioner of Customs (Appeals) by which the Appeal filed by the respondent M/s Artex Textile Private Limited Artex Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 10,95,32,485.41/- (which duty was paid by debiting DEPB scrips) was directed to be re-credited in the DEPB scrips utilized by Artex Textile at the time of importation. 4. It is against this part of the order directing the amount to be re-credited in the DEPB scrips that Artex Textile filed an appeal before the Commissioner (Appeals) contending that since DEPB scrips had been withdrawn by the Director General of Foreign Trade, the re-credited scrips cannot be utilized by Artex Textile. 5. The Commissioner (Appeals), as noted above, partly allowed the Appeal and directed that the amount of ₹ 10,95,32,485.41/- should be disbursed to Artex Textile by way of RTGS. In coming to the aforesaid conclusion the Commissioner (Appeals) placed reliance upon the decision of the Delhi High Court in Allen Diesels India Pvt. Ltd. v/s Union of India 2016 (334) E.L.T. 624 (Del.). The relevant portion of the order of the Commissioner (Appeals) is reproduced below:- 5.3. In the instant case, refund of ₹ 10,95,32,485.41/- was ordered to be disbursed through re-crediting in the respective licences whereas, as per documents available on records, the Licence Issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral of Foreign Trade has not stopped or refused re-crediting duty in scrips and Artex Textile did not even pursue the matter with the Director General of Foreign Trade for re-validation of scrips. In this connection, learned Authorized Representative has placed the communication dated 2 August, 2019 sent by the Deputy Director General of Foreign Trade to the Additional Director General of Foreign Trade which mentions that based on the credit note issued by ICD, Patparganj for ₹ 109,532,485/-, re-credit of DEPB scrips may be done for a suitable period. 8. Shri B.L. Narasimhan, learned Counsel appearing for the Respondent has, however, submitted that the order passed by the Commissioner (Appeals) does not suffer from any infirmity. It is his submission that the Artex Textile is entitled to the refund of excise duty paid by RTGS since there is no mechanism for re-credit. Thus, refund of duty can be paid in cash and reliance on various Board Circulars by the Department is not justified as the Circulars are not applicable in the present case. 9. The submissions advanced by the learned Authorized Representative of the Department and the learned Counsel for the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, could be exercised only till 30 September, 2011. The relevant paragraph of the notification is reproduced below:- (i) for paragraph 2, the following paragraph shall be substituted, namely:- 2. This notification shall be valid in respect of the Duty Entitlement Pass Book Scrips issued by the Licensing Authority against exports having Let Export Order up to and inclusive of the 30th day of September, 2011. 14. Reference also needs to be made to a Circular dated 1 July, 2011 which states that since the DEPB Scheme stands extended till 30 September, 2011, exports made till the said date alone would be entitled to the benefit. Thus, the importers were allowed to import goods by debiting DEPB scrips only upto 30 September, 2011. Such re-credits of DEPB scrips could have been utilized only within the period provided in the Notification, which period expired more than six years ago. In this view of the matter when the DEPB scrips are no longer valid, the claim of the Department that refund of excess duty paid must be re-credited in such scrips would actually result in denial of refund claim to Artex Textile. 15. The payment of duty by debiting the DEPB scrips ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to remove ambiguities, in fact what the circulars seek to amend is Notification No. 102/2007-Customs itself by introducing an additional condition for being entitled to refund, which condition does not find place in Notification No. 102/2007-Customs. This condition is to the effect that if the payment of the SAD has in the first place not been made in cash, but by using a DEPB scrip, then the importers concerned would not be entitled to refund of SAD in cash. It is not in dispute that there is no such restriction in Notification No. 102/2007-Customs even as on date. 20. Therefore, the legal position as explained in the above decisions makes it clear that the Circular Nos. 6/2008, 10/2012 and 18/2013 issued by the CBEC could not have imposed an additional restriction for availing of the exemption in terms of the Notification No. 102/2007- Cus issued under Section 25(1) of the Act. An amendment to a notification issued in exercise of the powers under Section 25 (1) of the Act has to be brought about only by issuing another notification under that provision. Inasmuch as the circulars under challenge seek to impose an additional restriction for grant of refund of the SAD unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue and allowed refund in cash, after placing reliance upon the decision of the Delhi High Court in Allen Diesels. The relevant paragraphs of the decision of the Tribunal are as follows:- 20. Further, we also agree with the observations made in the impugned order dated 11.7.2018 of the Commissioner of Customs (Appeals) that refund claim cannot be denied merely on the ground that there is no provision under law. Once it is accepted that the benefits surrendered by the respondents are in the nature of amount deposited during investigations, then the refund of the excess amount has to be paid/refunded. 21. In the case of Allen Diesels India Pvt. Ltd. 2016(334)ELT-624 (Delhi HC), the assessee had claimed refund of the Special Additional Duty in terms of Notification No. 102/2007-Cus which was denied by the department on the ground that duty was paid by using DEPB and hence refund cannot be sanctioned in cash. Hon ble Delhi High Court allowed the appeal of the assessee on the ground that there is no such bar in law to disallow the refund on the ground that there is no such provision. Likewise, in the case of Ratnamani Metals and Tubes Ltd Vis UOI reported in 2016 (339) ..... 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