Commissioner Of Customs, Ahmedabad vs M/S. Rainbow Papers Limited

(Arising out of OIA-119/2014/CUS/COMMR-A-/AHD dated 13.03.2014, passed by Commissioner (Appeals) Customs, Ahmedabad)

Commissioner of Customs, Ahmedabad : Appellant (s)

VERSUS

M/s. Rainbow Papers Limited : Respondent (s)

Represented by :

For Revenue (s) : Shri S.K. Shukla, Authorised Representative For Respondent (s) : Shri D.K. Trivedi, Advocate

For approval and signature :

Mr. P.M. Saleem, Honble Member (Technical)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.M. Saleem, Honble Member (Technical)

Date of Hearing / Decision : 23.10.2015

ORDER No. A/11546/2015 Dated 23.10.2015

Per : Mr. P.M. Saleem

Aggrieved by the impugned Order-in-Appeal dated 13.03.2014, Revenue has filed this appeal.

2. The facts of the case in brief are that the assessee filed refund claim in pursuance of Notification No. 102-2007-Cus. dated 14.09.2007 for refund of 4% Special Additional Duty of Customs (SAD) paid by them on the goods imported and subsequently sold. The adjudicating authority has held that they had preferred a refund claim of Rs. 8,08,265/- initially filed on 11.07.2012. The said refund claim was withdrawn vide their letter dated 04.09.2012 citing reason that notification issued by DGFT that no refund may be claimed against Import duty paid by DEPB Licenses after March, 2012, and hence stating they were withdrawing their application and will apply in future if any amendment is issued by DGFT in respect of the said notification. In their reply to show cause notice, they have submitted that they had withdrawn the claim on the request of Customs Officials. However, there in no mention about the same in their letter dated 04.09.2012 and no evidence has been adduced by the importer to back the said submission either before the original adjudicating authority or thereafter. In the impugned order, the adjudicating authority has held that it is a settled principle that the condition of time limit, if prescribed in the notification, has to be strictly adhered to. Further, since there is no provision in the said notification for any relaxation in period of filing the claim, and that they have withdrawn their refund claim by themselves, and later filed the claim on 27.05.2013 by which time the impugned refund claim was hit by limitation of time, the same was liable to be rejected, and the same was rejected vide the impugned order-in-original.

3. Aggrieved by the said order of the adjudicating authority, the assessee filed appeal before the appellate authority. The Commissioner (Appeals) vide impugned Order-in-Appeal dated 13.03.2014 remanded the matter back to the original adjudicating authority. The Commissioner (Appeals), in Para 6.5, expressed his views regarding the eligibility of the refund as under:-

6.5.  In other words, if utilisation period is not extended such refund would be rendered infructuous. In that case, the appellant shall be entitled for refund by way of re-credit, subject to the condition that he has not passed on the said duty. Further, there is no order so far utilisation is concerned, as the same shall depend upon the CBEC or DGFT permitting such utilisation, as discussed above. This shall be kept in mind while passing a de-novo order.

The Commissioner (Appeals) also directed the original adjudicating authority to verify the issue of unjust-enrichment in remand proceedings. Revenue is in appeal before us aggrieved by the said Order-in-Appeal.

4. Heard both sides. The learned Authorised Representative for the Revenue draws our attention to the appeal memorandum and the grounds of appeal. He submits that the Respondent had filed refund initially on 11.07.2012 which was subsequently withdrawn by them on their own on 04.09.2012, stating that according to notification issued by DGFT no refund will be claimed against import duty paid by the DEPB Licenses after March 2012. The Respondent filed the refund claim again on 27.05.2013, consequent to the CBEC Circular No. 18/2013 dated 29.04.2013, by which, the time limit for using re-credited DEPB scrips/ Reward Scheme scrips in case of 4% SAD was extended up to 30.09.2013. Further, he submitted the said Circular was only with respect to re-crediting the scrips and not regarding refund claims. Further, he contends that the time limit for filing the refund claim is specifically mentioned in Para 5(c) of the Notification No. 102/2007-Cus dated 14.09.2007, which reads as under:-

5(c). The importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer before the expiry of one year from the date of payment of the said additional duty of customs.

Therefore, he contends that the impugned order remanding the matter to lower authority was not sustainable, as the refund claim was clearly hit by limitation and should have been rejected.

5. On the other hand, learned Advocate for the respondents submits that initially the refund claim was filed on 11.07.2012. He submits that the respondent requested to return the refund claim vide letter dated 04.09.2012. He submits that it was done on the instructions of Customs officers. Subsequently, after the issuance of CBEC Circular No. 18/2013-Cus dated 29.4.2013, which extended the time-limit for using the re-credited DEPB scrips up to 30.09.2013, they resubmitted the refund claim on 27.05.2013. He further submits that Para 3 of the said CBEC Circular also directs all Chief Commissioners of Customs to ensure that all the pending applications for refund of 4% SAD paid through DEPB/ reward scrips are disposed of by 30.6.2013. He contends that their refund claim was initially filed within the time limit and the same was taken back at the instance of the Customs officers and was subsequently resubmitted as soon as the time limit was extended by the CBEC. Learned Advocate submitted that the relevant date for submission of refund claim should be taken as the initial date of submission of claim i.e. 11.07.2012, which is within the time limit of one year. He also relied upon the decision in the case of Commissioner of Customs, ICD, TKD, New Delhi vs. Marvel Polymers Pvt. Limited  2013 (294) ELT 272 (Tri. Del.).

6. On consideration of the contentions of both sides and perusal of the records, it is observed that the subject refund claim was initially filed on 11.07.2012, which was within the time limit of one year, as specified in Notification No. 102/2007-Cus dated 14.09.2007. It is the claim of the Respondent that the said refund claim was taken back by them at the request of Customs officer. However, this fact is not coming out from the records. The claim was resubmitted on 27.05.2013, by which time, the time limit of one year prescribed in the notification had clearly expired. It is observed that the time limit for filing refund claim has not been extended under any law, rules or notification. Therefore, the time limit prescribed under Notification No. 102/2007-Cus dated 14.09.2007 will be squarely applicable in the instant case. It is well settled law that the provisions of the notification has to be construed strictly. Further, the 9 Member Bench of the Honble Supreme Court in the case of Mafatlal Industries Limited vs. UOI  1997 (89) ELT 247 (SC), held that all claims for refund has to be preferred and adjudicated upon as per the provisions of Section 11B of the Central Excise Act, 1944 or Section 27 of the Customs Act, 1962. Therefore, time limit of one year prescribed under Section 27 of the Customs Act, 1962 will also be applicable in the instant case. The case law relied upon by the Respondent is not applicable to this case as the facts of this case are different. The issue in the said case was sanction of provisionally assessed Bills of Entry which is not the case herein.

7. In view of the above, the impugned order of the Commissioner (Appeals) cannot be sustained and the same is set-aside. Appeal filed by the Revenue is allowed.

(Order dictated and pronounced in the open Court)

(P.M. Saleem) Member (Technical) .KL

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