2019 (3) TMI 453 – CESTAT KOLKATA – TMI – Refund claims – price variation clause – transaction value determined after importation due to annual discount/quantity rebate, determined after end of the contract period – rejection on the ground that the assessments are final and as such, refund claims are not maintainable – Held that:- Tribunal in the case of Commissioner of Customs (Export) New Delhi Vs. Lalit Kumar [2017 (1) TMI 7 – CESTAT NEW DELHI] has held that refund claim of the appellant was maintainable under Section 27 of the Customs Act and the non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 – refund allowed – appeal allowed – decided in favor of appellant. – MA (EH)-77675-77687/18 & Cus. Appeal Nos.75850-75862/18 – MO/75133-75145/2019 & FO/75233-75245/2019 – Dated:- 4-3-2019 – SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) And SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Shri S.
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ount/quantity rebate, resulted in reduction of price/assessable value under Section 14 of the Customs Act, 1962. Refund claims were filed along with all the documents including BRC. The claims were rejected on the ground that the assessments are final and as such, refund claims are not maintainable. 4. Heard both sides and perused the appeal records. 5. We find that the raw material i.e. Rock Phosphate was imported from Morocco, with whom the appellants have long terms contracts. The said contract contains price variation clause, according to which depending upon the quantum of off take, the overseas supplier offers quantity rebate and price discount, which can only be ascertained at the end of the contract period. The above factual aspects are admitted by the authorities below, and therefore, those are not under dispute. Since the quantity rebate/price discount was not known at the time of import, the imported goods were cleared on payment of duty, on the basis value shown by the over
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reduced value represented the transaction value of imported Rock Phosphate, in terms of Section 14 of the Customs Act. 7. As stated above, the appellant at the time of importation, paid duty on the value shown in the bill of lading, which was higher than the transaction value, determined subsequently, after receipt of discount/rebate amount from the foreign suppliers. Transaction value, in terms of Section 14 of the Act, means the price actually paid/ payable for the imported goods. Duty, in terms of Section 14 of the Act, is leviable/payable on the transaction value. Duty payable in this case became lesser than the duty already paid by the appellant. 8. The Assistant Commissioner, relying upon the decision of the Hon ble Supreme Court in the case of Flock (India) Pvt. Ltd. 2000 (120) E.L.T. 285 (S.C.) and Priya Blue Industries 2004 (172) E.L.T. 145 (S.C.), had held that since the appellant did not challenge the assessment of bill of entry by filling appeal against the same, Refund App
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rusal of the case records, we find that the refund application filed by the respondent on 25-5-2011, claiming refund of excess duty paid by it was returned by the Assistant Commissioner (Refund) under the cover of his letter dated 24-8-2011. Thereafter, the respondent had filed the appeal before the Commissioner (Appeals) on 12-9-2011. Cause of action for filing appeal will not be considered as the date of assessment of the Bill of Entry inasmuch as the benefit of duty exemption provided under the above referred notifications was claimed by the respondent in the refund application, since the same was not considered at the time of assessment. Decision taken by the Department for non-consideration of the refund application filed after finalization of assessment and return of the same under the cover of letter dated 24-8-2011, assigning the reason of premature and not maintainable, in our considered opinion, would give rise to the cause of action for filing appeal before the ld. Commissio
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the benefit provided under notification dated 1-3-2006 was not claimed in the Bill of Entry. On the basis of information furnished by the respondent, since the Bill of Entry was assessed by the Customs Department and the assessed duty was paid by the respondent, it cannot be said that the duty was paid by the respondent in pursuance of an order of assessment . The case of the respondent falls under the second category, i.e., borne by him contained in Section 27 ibid, according to which, since the duty incidence has been borne by the respondent, claiming of refund of such excess duty in terms of Section 27 ibid, in our view is in conformity with the statutory provisions. 7. The judgment of Hon ble Supreme Court in the case of Priya Blue Industries Ltd. (supra) cited by Revenue in their grounds of appeal is distinguishable from the facts of the present case inasmuch as the duty in such case was paid by the importer in pursuance of an assessment order and the Hon ble Supreme Court have r
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ment are extracted herein below :- If, therefore, we refer to language of 4. Section 27, it is more than clear that the duty which is paid is not necessarily pursuant to an order of assessment but can also be borne by him . Clauses (i) and (ii) of sub-section (1) of Section 27 are clearly in the alternative as the expression or is found in between clauses (i) and (ii). The object of Section 27(i)(ii) is to cover those classes of cases, where the duty is paid by a person without an order of assessment, i.e. in a case like the present where the assessee pays the duty in ignorance of a notification which allows him payment of concessional rate of duty merely after filing a Bill of Entry. In fact, such a case is the present case in which there is no assessment order for being challenged in the appeal which is passed under Section 27(1)(i) of the Act because there is no contest or lis and hence no adversarial assessment order. The Tribunal has referred to the cases of 5. CCE, Kanpur v. Floc
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