Custom, Excise & Service Tax Tribunal
M/S . Pioneer India Electronics Pvt. Ltd vs Cc (Sea Exp.), Chennai on 28 May, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH, CHENNAI C/41724/2013 (Arising out of Order in Appeal C.Cus No. 735/2015 dated 16.05.2013, passed by the Commissioner of Customs (Appeals), Chennai) M/s . Pioneer India Electronics Pvt. Ltd. : Appellant Vs. CC (Sea Exp.), Chennai : Respondent
Appearance Shri Srinivas Kothi, Adv.
For the appellant Shri B. Balamurugan, AC (AR) For the respondent CORAM Honble Shri R. PERIASAMI, Technical Member Honble Shri P.K. CHOUDHARY, Judicial Member FINAL ORDER No. 41613 / 2015 Date of Hearing/Decision: 28.05.2015 Per: P.K. Choudhary The appellant filed this present appeal challenging the Order in Appeal C.Cus No. 735/2015 dated 16.05.2013.
2. The brief facts of the case are that the appellant is a subsidiary company of M/s. Pioneer Corporation, Japan and is engaged in the business of import and marketing of Pioneer branded products in India. Since the goods are being imported from the related foreign supplier, the appellant was required to get the transactions verified and investigated by the Special Valuation Branch on periodical basis. The Notification No. 102/07-Cus dated 14/09/2007 provides for various conditions for claiming refund of SAD. The Assistant Commissioner of Customs (Refunds) rejected the claim of SAD refund amounting to Rs.1,15,09,156/- on the ground that the claims were filed beyond the time limit prescribed under Notification No. 102/07-Cus dated 14/09/2007 as amended by Notification No. 93/2008 dated 1/08/2008 and also Boards Circular No. 6/2008 dated 28.04.2008 and 16/2008 dated 13/10/2008. On appeal, the Ld. Commissioner (Appeals) upheld the lower authoritys order and rejected the assessees appeal.
3. The Ld. Counsel Shri Srinivas Kothi, appearing on behalf of the appellant assessee submitted that the Notification No. 102/07-Cus dated 14/09/2007 provides for various conditions to be complied with for claiming refund of 4% SAD and the appellant assessee has duly complied with all the conditions specified in the said notification. He further submitted that the appellant company was incorporated in the year 2008 and has been importing the goods from their related foreign buyer and the first SVB order was passed by the Assistant Commissioner of Customs dated 25.11.2009 and all the transactions were provisionally assessed in terms of Section 18 of the Customs Act, 1962 and they were paying 1% EDD on all the imports made before the aforesaid period. He further submitted that the appellant that the appellant assessee imported various goods during the period January to September,2009 and filed three refund claims in accordance with the explanation to Section 27 of the Customs Act, 1962, in respect of 19 Bills of Entry for the said period, after the final assessment for all the 19 Bills of Entry dated 15.02.2011. The table containing the relevant information in respect of 19 Bills of Entry indicated the payments of duty, dates of final assessment and date of filing refund claims were placed in annexure-1. He further submits that the SVB order was passed by the Department on 25.11.2009 and the refund order was also passed on 28.07.2014 in respect of 1% EDD for all the 19 Bills of Entry. The Ld. Advocate vehemently argued that the aforesaid notification 102/07-Cus dated 14/09/2007 did not provide for any limitation period for filing of SAD refund. The limitation period of one year was inserted vide Notification No. 93/2008 dated 01.08/2008. Section 27 of the Customs Act, 1962 read with explanation 2 provides that the limitation period shall be computed from the date of adjustment of duty of final assessment. He relied to the decision of the Honble High Court of Delhi in W.P.(C) No. 5120/2011 vide final order dated 13.09.2013 in the appellants own case on identical facts and issues reported in 2014 (301) E.L.T. 59 (Del.), wherein the Honble High Court set aside the order and remanded the case to the adjudicating authority with a direction to process the refund. He further submits that the Honble High Court of Delhis order has been accepted by the department and the Commissioner of Customs, Delhi has already sanctioned the SAD refund. Accordingly, he pleads for relief.
4. The Ld. AR Shri B. Balamurugan, AC, appearing on behalf of the Revenue reiterated the findings of the Commissioner (Appeals) and submitted that the appellant did not produce the copies of the SVB orders of finalisation of the provisional assessment in support of their claim. He further submitted that the appellant should have filed the claims well within the stipulated time and there is no provision in law to condone such delay.
5. Heard both the sides and on perusal of the records, we find that this is the case of related party transaction. The case was referred to the Special Valuation Branch of Customs for the purpose of provisional assessment and claims. On finalisation of the assessment, final duty was assessed and the provisional duty paid was adjusted towards the final duty. This procedure is followed in related party transactions. In case, any additional duty is payable during final adjudication, the importer is liable to pay the same and where the provisional duty is more than the final duty assessed, the same is to be refunded to the importer. In this regard, for better appreciation of the case, the relevant portion of the decision of the Honble High Court of Delhi is reproduced as under:-
38.?In view of the above discussion, we feel that it will be proper to harmoniously construe and interpret notification dated 1st August, 2008 and Section 27 read with Circular dated 29th July, 2010 by holding that an Assessee can make a claim for refund under Notification No. 93 of 2008 dated 1st August, 2008 either by filing an application for refund within the limitation period specified under Section 27 of the Customs Act, 1962 or within the extended limitation period of one year from the actual date of payment even, if the said payment made was pursuant to provisional assessment. The longer of the two periods i.e. the period specified under Section 27 or the notification dated 1st August, 2008 read with Circular No. 23/2010-Custom, dated 29th July, 2010 would be applicable.
39.?To sum up :
a. where the imported goods are released on payment of CVD on regular assessment, the application seeking refund can be made within one year of the payment of the CVD in terms of the notification dated 1st August, 2008 read with Circular No. 23/2010-Customs, dated 29th July, 2010.
b. where the goods are released on provisional assessment followed by the final assessment, the application seeking refund can be made within the period of one year or six months, as the case may be, of the final assessment as stipulated by Explanation II to Section 27 of the Act or within the enlarged period of one year from the date of provisional release as stipulated by the notification dated 1st August, 2008 read with Circular No. 23/2010-Customs, dated 29th July, 2010.
40.?The Circular No. 23/2010-Customs insofar as it stipulates that the provisions of Section 27 of the Act do not apply to the Notification cannot be sustained to the extent indicated above.
41.?In view of the construction given by us to the circular hereinabove, the Judgment relied upon by the counsel for the Petitioner of the High Court of Madras in the case of KSJ Metal Impex Private v. Under Secretary, Customs and Others in Writ Petition No. 959/2013, decided on 21-1-2013 [2013 (294) E.L.T. 211 (Mad.)] need not be referred to. Even otherwise the said judgment is not applicable in the facts of the present case as the same was dealing with the issue of interest on delayed refunds.
42.?Since the petitioner has filed the claims within the period stipulated by Section 27 of the Act, in view of the construction given by us, the same could not have been rejected on the ground of limitation.
43.?In view of the above, the impugned Circular No. 23/2010-Customs to the extent it holds that Section 27 of the Act has no application is held ultra vires the statute and quashed. The impugned orders dated 21-3-2011 and 27-4-2011 passed by Respondent No. 2 relying on Circular No. 23/2010-Customs, dated 29-7-2010 are hereby set aside and the matter is remanded to Respondent No. 2 to assess the claim of the petitioner for refund on imports and to process the same in accordance with the provisions of Section 27 of the Act.
44.?The writ petition is, accordingly, disposed of with no order as to costs.
6. The ratio of the above Honble High Courts Order in the appellants own case, has attained finality, as the same has been accepted by the department and the SAD refund has been sanctioned to the appellant by the jurisdictional Commissioner, Delhi. By respectfully following the ratio laid down by the Honble High Court of Delhi, the case is remanded to the adjudicating authority to sanction the refund as per the Honble High Courts Order referred above. The appeal is allowed by way of remand.
(Order pronounced in the Open Court on 28.05.2015)
(P.K. CHOUDHARY) (R. PERIASAMI)
Judicial Member Tehnical Member
BB
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