M\/s Indian Farmers Fertilizer Co-operative Ltd. Versus Commissioner of CGST, Ex. & Customs, Bhubaneswar
Customs
2018 (9) TMI 762 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 31-5-2018
Cus. Appeal No. 75548\/18 – Order No. FO\/75361\/2018
Customs
Shri P. K. Choudhary, Judicial Member
\nFor the Appellant (s) : Shri H. K. Pandey, Advocate
\nFor the Respondent (s) : Shri S. K. Naskar, Asstt. Commr. (A.R.)
\nPer Shri P. K. Choudhary :
\nThis is an appeal filed by the Appellant against the Order-in- Appeal No.15\/CUS\/CCP-GST\/2017 dated 16.11.2017 passed by the Commissioner (Appeals) of GST,Excise & Customs, BBSR.
\n2. Briefly stated the facts of the case are that the appellant imported Rock Phosphate from an overseas Supplier M\/s. Jordon Phosphate Mines Limited, Amman, Jordon on the basis of the Memorandum of Agreement. They got rebate on CTR price on account of higher moisture and Silica contained in the Cargo of Rock Phosphate and subsequently change in the freight rate. <\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n decision of Priya Blue Industries Limited (Supra), dismissed the appeal filed by the Revenue. The relevant portion of the said decision is reproduced below : = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n y the importer, can claim the same as refund. In this case, an amount of Rs. 6,06,887\/- towards excise duty\/additional duty of customs was paid by the respondent, since 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”. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n of Customs, Delhi reported in 2010 (250) E.L.T. 30 (Del.) have held that duty borne by the person can claim refund under Section 27 ibid. The relevant paragraphs in the said judgment are extracted herein below :- = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s Indian Farmers Fertilizer Co-operative Ltd. Versus Commissioner of CGST, Ex. & Customs, BhubaneswarCustoms2018 (9) TMI 762 – CESTAT KOLKATA – TMICESTAT KOLKATA – ATDated:- 31-5-2018Cus. Appeal No. 75548\/18 – Order No. FO\/75361\/2018CustomsShri P. K. Choudhary, Judicial Member For the Appellant (s) : Shri H. K. Pandey, Advocate For the Respondent (s) : Shri S. … Continue reading “M\/s Indian Farmers Fertilizer Co-operative Ltd. Versus Commissioner of CGST, Ex. & Customs, Bhubaneswar”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-13711","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/13711","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=13711"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/13711\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=13711"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=13711"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=13711"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n “5. On perusal 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<\/p>\n
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\n 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.
\n 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 disting<\/p>\n
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\n 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<\/p>\n
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