TMI Blog2021 (11) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... ice explaining the entire situation by which he had to file the refund claim and thereafter the application for withdrawing the refund claim. The adjudicating authority however proceeded to impose a penalty of ₹ 50 lakhs. Interestingly, the Commissioner (Appeals) after taking cognizance of all the facts has observed that the appellant did not respond to the Show Cause Notice and did not appear for personal hearing before the adjudicating authority - the conclusion arrived by the Commissioner (Appeals) that the appellant did not reply to the Show Cause Notice did not appear for the personal hearing would establish the mens rea is not only wrong but highly absurd. Levy of penalty u/s 114AA of Customs Act - HELD THAT:- There is nothing brought out in evidence which attracts the ingredients of section 114AA of the Customs Act, 1962. The mere fact that the department had already appropriated the duty amount paid by the appellant towards the imported goods and therefore could not collect further amount against the amended bills of entry presented by the new purchaser cannot be a ground to issue a Show Cause Notice alleging attempt to claim undue refund. Appeal allowed - de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Gravita India Ltd. would get the IGM amended and would file fresh bills of entry in their name for clearing the goods. However, M/s. Gravita India Ltd. informed that since cancellation of the bills of entry was not possible in the ICEGATE system, they amended the name of the importer in the bills of entry. Ideally, the customs department ought to have refunded the IGST initially paid by the appellant and ought to have collected the IGST from the substituted importer (M/s. Gravita India Ltd. in this case) with applicable interest. However, the appellant was informed that the IGST payment of ₹ 61,24,785/- was adjusted by department towards IGST payable by M/s. Gravita India Ltd. under the amended bills of entry. Upon receipt of this information, the appellant filed a letter dated 30.11.2018 for withdrawing the application of refund of IGST which had been submitted on 9.10.2018. After filing the application for withdrawing the refund claim, the department issued a deficiency memo dated 11.12.2018 to the appellant. As the refund claim was already withdrawn, the appellant did not respond to the deficiency memo. A Show Cause Notice dated 6.2.2019 was issued proposing to impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtain undue refund and thereunder proposing to impose penalty under section 114AA of the Customs Act, 1962. The appellant had filed reply to the Show Cause Notice explaining the set of facts. However, the adjudicating authority confirmed the proposals in the Show Cause Notice and imposed a penalty of ₹ 50 lakhs. 5. He argued that the conduct of the appellant was bonafide and there was no intention to avail ineligible refund. The appellant had paid the duty in respect of the goods which could not be cleared by them. It is also brought out from the Show Cause Notice that the goods have been cleared by M/s. Gravita India Ltd. The appellant had filed the refund claim in the initial stage when they were not able to clear the goods for want of original documents. Later, when NOC was issued and the bills of entry were amended in the name of the new purchaser, the appellant came to understand that the duty cannot be refunded and the same has to be adjusted against the duty liability. The application for withdrawing the refund claim was thus filed. In para 6 of the Show Cause Notice and at page 10 of the Order in Original, the department states that once duty was remitted online ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides. 11. The allegation is that the appellant attempted to obtain undue refund. From the facts narrated above, it can be seen that the refund claim was filed on 9.10.2018 in a situation where appellant paid duty and was not able to clear the goods. The duty of ₹ 61,24,785/- having been paid on 5.9.2018 and 11.9.2018, the appellant filed refund claim since he did not find any ways to clear the goods. Later, the foreign supplier has arranged for a new purchaser and the NOC was issued by the appellant. It is understood from the facts of the case that by this time the duty paid vide bill of entry presented by the appellant was appropriated towards the imported goods. Even though the title of the goods were transferred to the new purchaser by amended bills of entry, the duty could not be collected from the new purchaser as the duty on the goods already stood discharged. 12. The allegation in the Show Cause Notice is that the appellant has made deliberate attempt to obtain undue refund. In fact, the appellant has replied to the Show Cause Notice explaining the entire situation by which he had to file the refund claim and thereafter the application for withdrawing the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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