Custom, Excise & Service Tax Tribunal
Commissioner Of Customs, Pune vs M/S Atlantic Shipping Pvt. Ltd on 26 December, 2013
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II IN APPEAL NO. C/869/10 (Arising out of Order-in-Appeal No. GOA/CUS/GSK/59/2010 dated 31.08.2010 passed by the Commissioner of Central Excise & Customs (Appeals) Goa.) For approval and signature: Honble Shri Anil Choudhary, Member (Judicial) ======================================================
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?
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Commissioner of Customs, Pune
: Appellant
Versus
M/s Atlantic Shipping Pvt. Ltd.
: Respondent
Appearance
Shri D. Nagvenkar, Addl. Commr. (A.R.)
: For Appellant
Shri Suresh Nair, Consultant
: For Respondents
CORAM:
HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)
Date of Hearing : 26.12.2013 Date of Decision: 26.12.2013
ORDER NO.......................................................
Per: Anil Choudhary:
The Revenue is in appeal against rejection of its appeal by the Commissioner (Appeals) vide order dated 31.08.2010.
2. Brief facts of the case are that the respondent shipping company on conversion of foreign going vessel to coastal run, the Bill of Entry was assessed provisionally on 06.02.2009, which was subsequently assessed finally on 19.08.2009. The provisionally assessed Customs duty was paid on estimated quantity of bunker fuel to be consumed during the coastal run, by the shipping agent on behalf of the shipping company. On completion of the final assessment, refund application was filed as duty had earlier been paid in excess on provisional assessment basis. The Assistant Commissioner observed that for refund of the duty paid on the bunkering item for coastal run, on provisional basis, unjust enrichment is not attracted. He further observed that the refund claim, on imported goods on which duty has been paid provisionally, were used captively, can be granted and accordingly sanctioned refund of the excess duty paid on provisional basis. The Revenue carried the matter before the Commissioner (Appeals) on the ground that the provision of unjust enrichment is attracted in the facts and circumstances of the case as the assessee might have transferred the cost indirectly for the services rendered during the coastal run. Further, it is not a case that the refund claim will be returned to the customers who received services and/or materials during the coastal run. The Commissioner (Appeals) dismissed the appeal of the Revenue recording a finding that the duty leviable on Bunker estimated to be consumed during coastal run of the vessel has been recovered by department on provisional assessment of Bill of Entry in terms of Boards Circular No. 58/97 dated 06.11.1997. Similarly, steamer agent is entitled to refund of duty in case of unutilized duty paid in terms of said Circular read with Boards letter F. No. 450/66/2005-Cus-IV dated 24.11.2005. Further, reliance was placed on the ruling of the Tribunal in the case of CC, Kandla Vs. Ambica Maritime Ltd. 2007 (220) ELT 887 (Tri-Ahmd), wherein it was held that while vessel is converted from foreign run to coastal run and Customs duty on ship stores deposited on provisional assessment basis on their estimated consumption during coastal run, the payment was based on estimate. It was held that such payment is not duty but only a deposit or notional amount on which doctrine of unjust enrichment is not applicable as provided under Section 27 read with Section 28D of the Customs Act, 1962. Being aggrieved, the Revenue is before this Tribunal.
3. The learned AR appearing for the Revenue, in addition to the grounds before the Commissioner (Appeals), has raised the additional ground that the ruling in the case of Ambica Maritime Ltd. (Supra) relied upon by the Commissioner (Appeals) is not relevant in the facts of this case, as in that case the Commissioner (Appeals) had rejected the departments appeal on the ground that the onus of proving the duty burden has not been passed on to the consumer, is with the department and not with the person claiming the refund.
4. The respondent assessee has opposed the appeal and further placed reliance on the Circular of the Board which clearly provided that on reconversion of the vessel from foreign run to coastal run, if the duty paid on provisional basis is found to be excess at the time of final assessment, then the same would be refunded. Further reliance is on the ruling of this Tribunal in the appellants own case reported in 2013 (294) ELT 275 (Tri-Ahmd.) wherein ruling of the Honble Karnataka High Court in the case of CC, Mangalore Vs. Agrotech Foods Ltd. 2010 (249) ELT 348 (Kar.) was followed, wherein it was held that on the adjustment of amount paid on provisional basis, doctrine of unjust enrichment is not attracted and thus, prays for dismissal of the Revenues appeal.
4.1 The respondent also relies on the ruling of the Hon'ble Supreme Court in the case of Paper Products Ltd. Vs. CCE, 1999 (112) ELT 765 (SC), wherein it has been held that the Boards Circulars are binding on the Revenue authorities.
5. Having considered the rival submissions, I find that the grounds of the Revenue is mis-placed and mis-conceived. From the case made out by the Revenue, the whole scheme of provisional assessment is to be given a go bye and rendered meaningless. This will be against the scheme of the Act and the Rules made thereunder. In view of the aforementioned findings and observations, I hold that there is no merit in the appeal of the Revenue and the same is hereby dismissed.
(Dictated and pronounced in open Court) (Anil Choudhary) Member (Judicial) Sinha 4