Custom, Excise & Service Tax Tribunal
Ashapura Trade &Amp; Transport Pvt. ... vs Cc (Import) Nhavasheva on 14 August, 2018
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: C/757/2011
[Arising out of Order-in-Appeal No: 375(CRC-1)/2011 (JNCH) IMP-
313 dated 25/08/2011 passed by the Commissioner of Customs
(Appeals), Mumbai - II.]
Ashapura Trade and Transport Pvt Ltd ... Appellant
versus
Commissioner of Customs (Import)
Nhava Sheva ...Respondent
Appearance:
Shri R C Saxena, Advocate for appellant Shri Manoj Kumar, Assistant Commissioner (AR) for respondent CORAM:
Hon'ble Shri C J Mathew, Member (Technical) Hon'ble Dr. Suvendu Kumar Pati, Member (Judicial) Date of hearing: 19/07/2018 Date of decision: 14/08/2018 ORDER NO: A/87087 / 2018 Per: C J Mathew This appeal of M/s Ashapura Trade and Transport Pvt Ltd lies against order-in-appeal no. 375(CRC-1)/2011 (JNCH) IMP-313 dated 25th August 2011 of Commissioner of Customs (Appeals), Nhava C/757/2011 2 Sheva, Mumbai - II, which has upheld the order of the original authority rejecting their claim for refund of ₹ 9,48,536/- on the ground of not having crossed the bar of unjust enrichment. The background of the matter as explained by the Learned Counsel for appellant is that they had imported 'battery powered vehicles' during July 2005 to July 2007 against 14 bills of entry which was subject to provisional assessment owing to dispute on the applicability of additional duty of 16% instead of 8% under notification no. 6/2006-Cx. The appellant had paid an amount as revenue deposit of ₹ 3,21,260/- for availment of provisional assessment. The deposits so made were claimed as refund following the finalization of provisional assessment in their favour by order dated 5th October 2009.
2. Heard Learned Counsel for the appellant and Learned Authorised Representative.
3. Learned Counsel submitted that the present appeal is restricted to the amount paid as deposit at the time of furnishing the bond for provisional assessment of goods. The first appellate authority upheld the rejection of the refund claim on the ground that they had availed CENVAT credit and, therefore, could not be entitled to the benefit of refund.
4. We are not convinced by this argument as the availment of CENVAT credit and its utilization is governed by another law over C/757/2011 3 which customs authorities have no control or supervision and that any illegible availment of CENVAT is to be dealt with by the competent authorities in accordance with the powers devolving on them. The original authority, as well as the first appellate authority, in the present instance, were required to dispose off the application for refund of ` 9,48,536/- in accordance with the provisions of Customs Act, 1962.
5. Test of unjust enrichment was introduced for refund arising from finalization of assessment with effect from 13th July 2006 and the failure to pass muster should have resulted in transfer of the sanctioned amount to the Consumer Welfare Fund as envisaged in section 18(5) of Customs Act, 1962. Such an exercise does not appear to have been undertaken by the original authority and the first appellate authority has merely confirmed the rejection without ascertaining this aspect.
6. Learned Counsel points out that, in addition to the certificate issued by the Chartered Accountant that the said amount so deposited did not form a part of the value of the goods sold to their customers, the balance sheet for the year ending 31st March 2008 indicates that the said amount has been provided for as 'receivable' in the exact amount for which refund of revenue deposit has been claimed.
7. In view of the above compliance and evidence of having borne C/757/2011 4 the incidence of the deposit on themselves, the rejection of the refund claim is patently improper.
8. Accordingly, we set aside the impugned order and allow the appeal with consequential relief.
(Pronounced in Court on 14/08/2018)
(Dr. Suvendu Kumar Pati) (C J Mathew)
Member (Judicial) Member (Technical)
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