Custom, Excise & Service Tax Tribunal
M/S Goodyear South Asia Tyres Pvt. Ltd vs Commissioner Of Customs (Imports), ... on 8 September, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal No. C/1170/05 (Arising out of Order-in-Appeal No. 115/2005 (JNCH) dated 30.08.2005 passed by the Commissioner of Customs (Appeals), JNCH, Mumbai-II). For approval and signature: Honble Shri M.V. Ravindran, Member (Judicial) Honble Shri Raju, Member (Technical) ======================================================
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? ====================================================== M/s Goodyear South Asia Tyres Pvt. Ltd. Appellant Vs. Commissioner of Customs (Imports), JNCH, Mumbai Respondent Appearance: None for Appellant Shri Ahibaran, Addl. Commissioner (AR) for Respondent CORAM: SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL) SHRI RAJU, MEMBER (TECHNICAL) Date of Hearing: 08.09.2016 Date of Decision: 08.09.2016 ORDER NO. Per: M.V. Ravindran
This appeal is directed against Order-in-Appeal No. 115/2005 (JNCH) dated 30.08.2005 passed by the Commissioner of Customs (Appeals), JNCH, Mumbai-II.
2. Heard both sides and perused the records.
3. The appellant is unrepresented. Appellant has sent a letter requesting the Bench to decide the issue in this appeal on merits.
4. Heard the Departmental Representative and perused the records.
5. The issue that falls for consideration is whether the appellant is entitled for the refund of the anti dumping duty discharged by them on the imported consignments of Styrene Butadiene Rubber (SBR in short) during the period December 1998 to April 1999. Appellant had imported consignments of SBR and warehoused them. The goods were cleared from the warehouse during the period may 1999 to June 1999, during the period anti-dumping duty was imposed on SBR. Appellant discharged the anti-dumping duty and filed refund claims on the ground that anti-dumping duty cannot be collected on the consignments which are already warehoused as provisions of Section 9A of the Customs Tariff Act was not applicable to anti-dumping duty. We find that the first appellate authority while rejecting the appeal of the appellant recorded the following findings: -
The adjudicating authority rejected the refund claims of the appellant on the ground that the date of crossing the Customs barrier, the Anti Dumping duty on SBR was leviable in terms of Notification No. 39/99 and therefore ADD under Section 9A of the Tariff Act is payable by the importer on imported goods. Regarding refund claims towards alleged duty difference in BDC, CVD and SAD calculation, the adjudicating authority observed that assessment to that extent is final and cannot be opened for re-assessment as per ratio of judgments in case of Commissioner of Central Excise Vs. M/s Flock India 2000 (120) ELT 285, wherein it has been decided that a refund claim is not maintainable when the assessee did not challenge the assessment order which become final.
In such circumstances, the Anti Dumping Duty on impugned goods was leviable in terms of Notification No. 33/99 and therefore Anti-Dumping Duty under Section 9A of Customs Tariff Act is payable by the appellant.
This is an appeal regarding refund claims in respect of the duty paid in excess due to erroneous calculation. I find that the order of assessment was neither challenged at the time of clearance nor was appealed against and therefore facts and circumstances of the case are such that ratio of decision of the Apex Court is in the Flock India case applicable in the instant case. In our view, the findings recorded by the first appellate authority are in consonance with the law, hence the appeal is dismissed as devoid of merits.
(Operative potion of order pronounced in Court)
(Raju) (M.V. Ravindran)
Member (Technical) Member (Judicial)
Sinha
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Appeal No. C/1170/05