Commissioner Of Customs (Import), ... vs M/S Global Vipassana Foundation

(Arising out of Order-in-Appeal No. 86/MCH/AC/REFUND(IMP)2012 dated 29.2.2012 passed by the Commissioner of Customs (Appeals), Mumbai).

For approval and signature:

Honble Shri Anil Choudhary, Member (Judicial)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy : Seen of the order?

4. Whether order is to be circulated to the Departmental : Yes authorities? ======================================================

Commissioner of Customs (Import), Mumbai Appellant

Vs.

M/s Global Vipassana Foundation Respondent

Appearance: Shri Ahibaran, Addl. Commissioner (AR) for Appellant

Shri N.D. George, Advocate for Respondent

CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)

Date of Hearing: 09.01.2015

Date of Decision: 09.01.2015

ORDER NO.

Per: Shri Anil Choudhary

Revenue is in appeal against Order-in-Appeal No. 86/MCH/AC/REFUND(IMP)2012 dated 29.2.2012 passed by the Commissioner of Customs (Appeals), Mumbai.

2. The brief facts are that the respondent/assessee M/s Global Vipassana Foundation was granted specific exemption vide Ad-hoc exemption from payment of Customs duty vide order F.No. 460/33/2006-Cus. V dated 11.1.2007, for the purpose of import of item like Uncut marble blocks, Myanmar timber, Myanmar wooden carved panels etc. for the construction of their Meditation Centre. The said exemption was initially granted upto 30.6.2007, which was extended upto 31.12.2008 vide Govt. of Indias letter F. No. 460/33/2006-Cus.V dated 30.7.2007 and further vide Govt. of India, Ministry of Finances letter dated 2.3.2009 it was directed that the Ad-hoc exemption order No. 3/2007, as amended by letter dated 30.7.2007, the validity period of the Ad-hoc Exemption Order may be read as December 31, 2009, instead of December 31, 2008. A copy of the Ad-hoc exemption and/or subsequent modifications were also marked to the Chief Commissioner of Customs (Imports), the Director of Receipt Audit (INDT) and the Director of Audit also.

2.1 As the goods for which the exemption was granted, arrived during the month of January/February, 2009, the appellant had filed Bill of Entry claiming exemption under the above Ad-hoc Exemption notification order no. 3 of 2007, but as the extension application was pending during the relevant period, the exemption claim was rejected and the duty was assessed which was paid by the appellant under protest at the relevant time.

3. Thereafter, the respondent assessee filed the refund application. Pursuant to which, personal hearing was granted by the Assistant Commissioner/adjudicating authority on 29.6.2009 and after taking notice of the exemption order No. 3/2007, the refund application was rejected on the ground that when the Bill of Entry was finalized, the assessee has not challenged the same before the appellate authority, hence, held liable for rejection in view of the ratio of the Hon'ble Supreme Court in the case of Commissioner of Customs Vs. Flock India Ltd.  2010 (120) ELT 285 (SC).

4. Being aggrieved the Respondent preferred appeal before the Commissioner (Appeals), who vide the impugned order, after taking notice of the exemption being granted till 31.12.2009, found the claim for refund to be genuine and tenable, and accordingly, set aside the Order-in-Original and allowed the appeal with direction that the refund claim be processed on merits.

5. Being aggrieved the Revenue is in appeal before this Tribunal on the ground that as the respondent assessee had not challenged the assessment of Bill of Entry, the Commissioner (Appeals) have erred in allowing the refund claim, which is against the ruling of the Hon'ble Supreme Court in the case of Flock India (supra) and in the case of Commissioner of Customs Vs. Eurotex India  2007 (216) ELT 137 (Tri-LB).

5.1 The learned AR for the Revenue on the basis of aforementioned decision stated that there is error in the impugned order and accordingly it is fit to be set aside.

6. The learned Counsel for the respondent assessee have filed the copy of the Ad-hoc exemption order before the Tribunal, as already noticed herein above. He further relies on the ruling of the Hon'ble Delhi High Court in the case of Aman Medical Products Ltd. Vs. Commissioner of Customs, Delhi  2010 (250) ELT 30 (Del), wherein the issue in consideration before the Hon'ble High Court was whether the assessee, who is entitled for concessional rate of duty, pays the higher duty by inadvertence, is not entitled to grant of refund of the excess duty paid unless he had filed an appeal against the order by which had deposited the duty, on filing of the Bill of Entry. The Hon'ble High Court held that refund claim of the assessee was maintainable under Section 47 of the Customs Act and non-filing of the appeal against the assessed Bill of Entry does not deprive the appellant/assessee to file its claim for refund under Section 27 of the Customs Act and which claim will fall under clause (ii) of sub-section (1) of Section 27. The Hon'ble High Court has also considered and discussed the ruling of Hon'ble Supreme Court in the case of Collector Vs. Flock (India) Pvt. Ltd.  2010 (120) ELT 285 (SC) and Priya Blue Industries Ltd. vs. Commissioner  2004 (172) ELT 145 (SC). The Hon'ble High Court took notice of the fact that there was an assessment order which was passed and it was held that where an adjudicating authority passed an order which is appealable and the party did not chose to exercise the statutory right of appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that adjudicating authority had committed an error in passing his order. The Hon'ble High Court held that this judgment will not apply when there is no assessment order which was in dispute, like as is in the facts of the present case.

7. Having considered the rival contentions, I find that the facts in the present case before us are the same as the facts before the Hon'ble Delhi High Court in the case of Aman Medical Products (supra). The excess duty was paid in exercise of the exemption notification, whereas in the present case the appellant had claimed exemption, but the same was denied and the duty was paid under protest. I find that the facts of the case are also similar to the facts in the case of Commissioner of Customs Vs. Tata Medical centre Trust  2014 (307) ELT 362 (Tri-Mum), wherein the Division Bench of this Tribunal after referring and distinguishing the rulings of Hon'ble Supreme Court in Flock (India) Ltd. (supra) and Priya Blue Industries Ltd. (supra), in the case where duty was paid inadvertently, it was held as follows: -

7.?We find that the respondents filed refund claim on the basis of ad hoc exemption Order dated 16-2-2010 which was already in existence at the time of import. However, the same was not brought to the notice of the Customs as the respondents were not aware of that order. From the ad hoc exemption order we find that the same was addressed to the concerned Customs Authorities. The ad hoc exemption order was in existence at the time of import of the goods. We find that the ratio of the decision in the case of Priya Blue Industries Ltd v. CC - 2004 (172) E.L.T. 145 (S.C.) relied upon by the Revenue is not applicable on the facts of the present case as in the present case goods are assessed to duty irrespective of the ad hoc exemption Order. In view of the above, there is no infirmity in the impugned order and the appeal filed by the Revenue is dismissed. However, we made it clear that as the respondents are claiming ad hoc Exemption Order, they are duty bound to fulfil the condition imposed under the ad hoc Exemption Order.

7.1 Further, I find that in the present case, the Assistant Commissioner has erred while passing the adjudication order as he has failed to take the documents already on recorded into notice while rejecting the claim of refund. Further, the Order-in-Original is also hit by limitation as the exemption granted by the Govt. of India, vide the latest letter dated 2.3.2009, which clearly shows that the exemption order granted earlier vide letter dated 11.1.2007, the validity period of the Ad-hoc exemption order may please be read as 31.12.2009 instead of 31.12.2008. By this letter, the Govt. had extended the exemption period with the retrospective effect, which is binding on officers of the Govt. of India. Accordingly, there is no error in the appellate order and the same is upheld and the appeal of the Revenue is dismissed. I further, direct the adjudicating authority to grant the refund within a period of six weeks from the date of receipt of this order, with interest as per Rules.

(Dictated and pronounced in Court)

(Anil Choudhary) Member (Judicial)

Sinha

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