M/S. Grasim Industries Ltd vs C.C. Indore

[Arising out of Order-in-Appeal No. IND-CEX-000-APP-296-12 dated 25.09.2012 by the Commissioner of Customs & Central Excise (Appeals), Indore].

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see 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 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?

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

M/s. Grasim Industries Ltd. .Appellants

Vs.

C.C. Indore .Respondent

Appearance:

Shri Priyanka Goyal, Advocate for the Appellants

Shri D. Singh, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 19.01.2015

FINAL ORDER NO. 50203/2015-CU(SM)

Per Ashok Jindal:

The appellant is in appeal against the impugned order rejecting their refund claim.

2. The facts of the case are that the appellant has paid the basic customs duty at the rate of 10% instead of 7.5% as per the notification no. 21/2002 dated 01.03.2002 Sl. No. 558. Duty was paid on 22.02.2011. Thereafter, the appellant made a request for amendment in the Bill of Entry vide Letter dated 24.02.2011 and thereafter filed the letter for reassessment of Bill of Entry on 02.03.2011. Thereafter, on 08.03.2011 they filed the refund claim on the excess basic custom duty paid by them. The refund claim was rejected on the ground that as the appellant has not challenged Bill of Entry as per the decision of the Honble Apex Court in the case of Priya Blue Industries Ltd. Vs. C.C. (Preventive)-2004 (172) E.L.T. 145 (SC) and in the case of C.C.E. Kanpur Vs. Flock (India) Pvt. Ltd.-2000 (120) E.L.T. 285 (SC). Therefore, appellant is not entitled to take refund claim.

2. It is the contention of the Ld. Counsel for the appellant that the Bill of Entry was assessed on 22.02.2011 and immediately thereafter they filed an application for amendment of the Bill of Entry on 24.02.2011 and also sought reassessment on Bill of Entry vide letter dated 02.03.2011. Thereafter, they filed the refund claim on 08.03.2011. It is no doubt that basic customs duty has been paid in excess by the appellant. Therefore, as per the decision of this Tribunal in the case of De Nora India Ltd. 2012 (285) E.L.T. 266 Tri-Mum), appellant is entitled to claim refund of excess basic custom duty paid by them.

3. On the other hand Ld. AR oppose the contention of the Ld. Counsel and submits that the appellant is not entitled to take the refund claim without challenging the assessment of Bill of Entry which has been finalized on 22.02.2011. He further submits that the duty paid by the appellant has formed the part of the final product manufactured by the appellant. Therefore, they are not entitled to take refund as they have not borne the duty by themselves. In these circumstances, appellant is not entitled to take refund. He further submits that facts of the case on which appellant has relied are not relevant with the facts of this case, as in that case the exemption was given unconditionally whereas in this case exemption is available to the appellant with certain conditions.

4. Heard the parties. Considered the submission.

5. The facts which are in dispute are that the assessment of Bill of Entry took place on 22.02.2011 and the appellant sought amendment in Bill of Entry on 24.02.2011. Thereafter, the re-assessment of Bill of entry was sought by letter dated 02.03.2011. In these circumstances, the appellant has challenged the assessment of Bill of Entry and the challenge has not been considered by the lower authorities. Therefore, the refund claim as claimed by the appellant was not required to be rejected before reassessment of the Bill of Entry as sought by the appellant vide letter dated 02.03.2011.

6. In these circumstances, I set aside the impugned order and remand matter back to the Adjudicating Authority to decide the reassessment of Bill of Entry within 15 days of receipt of this order and thereafter to consider the refund claim by the appellant on merits. Appeal is allowed on above terms.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

4

C/4060/2012-CU(SM)