M/S Vardhman Acrylics Ltd vs Commissioner Of Customs, Kandla

Appeal No.C/168,169/2007 [Arising out of OIA No.29/2007-KDL/Cus/Commr(A)/AHD, dt.21.03.07, passed by Commissioner of Customs (Appeals), Kandla]

M/s Vardhman Acrylics Ltd. Appellant

Vs

Commissioner of Customs, Kandla Respondent

Represented by:

For Appellant: Shri Willingdon Christian, Advocate For Respondent: Shri Alok Srivastava, Authorised Representative

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. H.K. Thakur, Member (Technical)

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

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

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

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

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. H.K. THAKUR, MEMBER (TECHNICAL)

Date of Hearing/Decision: 08.04.2015

Order No.A/10304-10305/2015, dt.08.04.2015

Per: P.K. Das

1. The issue involved in these appeals is common and therefore, both are taken up together for disposal.

2. After hearing both the sides and on perusal of the records, we find that the Appellant filed Bills of Entry and by mistake paid the amount of Education Cess. Thereafter, the Appellant filed refund claim of duty paid by mistake. The Adjudicating authority rejected the refund claims. Commissioner (Appeals) rejected the appeal on the ground that the Appellant had not challenged the Assessment order.

3. We find that Honble Delhi High Court in the case of M/s Aman Medical Products Ltd Vs Commissioner of Customs, Delhi 2010 (250) ELT 30 (Del.) held that the refund claim of the Appellant was maintainable under sub-section 27(1) of Customs Act, 1962, for even non-filing of the appeal against assessed Bill of Entry. It does not deprive the right of Appellant to file refund claim under Section 27 of the Customs Act 1962. The Tribunal on the identical situation, in the case of M/s Little Bee Impex Vs Commissioner of Customs, Amritsar - 2013 (292) ELT 226 (Tri-Del) allowed the appeal filed by the importer. The relevant portion of the said decision is reproduced below:-

6.?We find that the appellants paid the export Cess by mistake and Revenue accepted the same, without any objection. As such, it seems to be a case of payment of export Cess under a mistake. Neither the appellant was aware of the exemption of the same nor the Revenue advised him not to pay the Cess. The decision of Honble Delhi High Court in the case of Aman Medical Products Ltd. v. CC, Delhi reported in 2010 (250) E.L.T. 30 (Del.), wherein the Honble High Court has held that when there is no lis between the assessee and the Revenue, non-filing of any appeal against the assessment order cannot act fatal to the assessees claim of refund. By applying the ratio of the above decision to the facts of the present case, we find that there was no lis between the appellant and the Revenue and it was a simple case of payment of export Cess on a mistaken belief, which was also not rectified by the Revenue. We accordingly find no infirmity in the view adopted by Commissioner (Appeals). Revenues appeal is accordingly rejected.

4. In the present case, the Appellant paid the Education Cess by mistake. It is also noticed that in one case, the Appellant paid cess under protest. The present cases are covered by the decisions of the Hon'ble High Court and Tribunals.

5. In view of that, we hold that the refund claim filed by the appellant under Section 27 of the Customs Act, 1962 is maintainable. Accordingly, the impugned orders passed are set aside and the matter is remanded to the Adjudicating authority to decide the refund claims afresh on merit. Both the appeals are allowed by way of remand.

(Dictated & Pronounced in Court)

(H.K. Thakur) (P.K. Das) Member (Technical) Member (Judicial)

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