Custom, Excise & Service Tax Tribunal
Texas Instruments India Pvt Ltd vs Commissioner Of Customs And Service Tax ... on 8 November, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: C/21333/2017-SM [Arising out of Order-in-Appeal No. 117-2017 dated 28/04/2017 passed by Commissioner of CUSTOMS , BANGALORE-I] Texas Instruments India Pvt Ltd Bagmane Tech Park No 66/3 Adjacent To Lrde Byrasandra C V Nagar Post BANGALORE - 560093 KARNATAKA Appellant(s) Versus Commissioner of Customs and Service Tax Bangalore-cus C.R. BUILDING,QUEENS ROAD, P.B.NO. 5400, BANGALORE, - 560001 KARNATAKA Respondent(s)
Appearance:
LAKSHMI KUMARAN & SRIDHARAN WORLD TRADE CENTRE NO.404-406, 4TH FLOOR, SOUTH WING BRIGADE GATEWAY CAMPUS NO.26/1, DR. RAJKUMAR ROAD, BANGALORE - 560 055 KARNATAKA For the Appellant Ms. Sonal, Adv.
For the Appellant Ms. Kavitha P, AR For the Respondent Date of Hearing: 08/11/2017 Date of Decision: 08/11/2017 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 22755 / 2017 Per : S.S GARG The present appeal has been filed against the impugned order dated 28.04.2017 passed by the Commissioner (A) whereby the Commissioner (A) has upheld the order-in-original and rejected the appeal of the appellant.
2. Briefly the facts of the case are that the appellant is 100% subsidiary of Texas Instruments International, USA and has been importing various prototype/components/parts/kits for designing of Integrated Circuits from Texas Instruments Inc., USA. The appellant and suppliers are related parties in terms of Rule 2(2) of Customs Valuation (determination of value of imported goods) Rules, 2007 and hence the matter was referred to Special Valuation Branch (SVB) for finalization of bills and during the pendency of the SVB, the appellant provisionally cleared the goods by executing a PD Bond and paying 1% Extra Duty Deposit (EDD) and subsequent to finalization, the appellant filed a refund claim of EDD paid. The Original Authority rejected the entire refund of Rs. 8,99,866/-.
3. Aggrieved by the said order, the appellant filed appeal before the Commissioner (A) who held that an amount of Rs. 91,713/- is liable to be deducted from the total refund claim on account of lack of original Bill of Entry and other supported documents. Further, the Commissioner (A) has held that the amount of EDD paid by the appellant is shown as an expense and not as receivables in their books of accounts and hence it fails the test of unjust enrichment.
4. Heard both the parties and perused the records.
5. Learned AR for the Counsel submitted that the impugned order is not sustainable in law as well as on facts. He further submitted that the Learned Commissioner (A) has observed in Para 4 of the impugned order that an amount of Rs. 8,08,513/- has been sanctioned and Rs. 91,713/- is rejected which is factually incorrect. Whereas in the order-in-original, the entire amount of refund of Rs. 8,99,866/- has been rejected. She further submitted that the appellant is entitled for automatic refund of EDD consequent to finalization of Bill of Entry and for this submission she relied upon the following two decisions:
* Motor Industries Company Ltd. Vs. Commissioner of Customs, 2005 (188) ELT 315 (Tri-Bang); * Suvidha Ltd. Vs. Union of India, 1996 (82) ELT 177 (Bom).
6. She also submitted that the amount deposited by the appellant towards EDD is in the nature of deposit as opposed to duty and payment of such deposit is not envisaged under section 12 of Customs Act, 1962 and for this she relied on the following decisions:
* CC, Bangalore Vs. Hityachi Koki (India) Pvt. Ltd., 2009-TIOL-2036-CESTAT-BANG; * CC, Chennai Vs. Sayonara Exports Pvt. Ltd., 2015 (321) ELT 583 (Mad).
7. She also submitted that the doctrine of unjust enrichment is applicable only to duty and not deposit and in the present case, the amount being claimed as refund is in the nature of deposit which cannot possibly attract the doctrine of unjust enrichment. For this she relied upon the following decisions:
* SKF Technologies (I) Pvt. Ltd. Vs. CC, Bangalore, 2017 (352) ELT 355; * CC, Bangalore Vs. Ecomaster (India) Pvt. LTd., 2007 (213) ELT 281 (Tri-Bang); * Wind World India Ltd. Vs. CC, Mumbai, 2015 (324) ELT 196.
8. She also submitted that merely payment of EDD is booked as expenditure and not receivables, it cannot be said that duty incidence is passed on to the customers and for this submission she has relied upon the decision in the case of Elantas Beck India Vs. CCE, Mum, 2016 (339) ELT 325 (Tri-Mum).
9. On the other hand, the Learned AR reiterated the findings of the impugned order.
10. After considering the submissions of both the parties and perusal of material on record, I find that the issue involved in the present case is no more res integra and has been settled in favour of the appellant by various decisions cited supra. Further, I also find that this Tribunal in the case of SKF Technologies (I) Pvt. Ltd cited supra, has held that EDD (extra duty deposit) made during the pendency of investigation by SVB is in the form of a security and the doctrine of unjust enrichment is not applicable for the refund of EDD. By following the ratios of the above said decisions, I set aside the impugned order and allow the appeal of the appellant for refund of entire EDD which is Rs. 8,99,866/-. Accordingly, the appeal is allowed with consequential relief, if any.
(Operative portion of the Order was pronounced in Open Court on 08/11/2017) S.S GARG JUDICIAL MEMBER RB 1