Custom, Excise & Service Tax Tribunal
M/S Skf Technologies (India) Pvt. Ltd vs Commissioner Of Customs on 20 September, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: C/21597/2014-SM [Arising out of Order-in-Appeal No. 423/2013-CUS (b) DATED 13.11.2013 passed by Commissioner of Customs (Appeals), Bangalore] For approval and signature: HON'BLE SHRI S. S. GARG, JUDICIAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes M/s SKF Technologies (India) Pvt. Ltd. 13th KM, Hosur Road, Bangalore 560 068. Appellant(s) Versus Commissioner of Customs, C.R. Building, Queens Road, Bangalore-560001. Respondent(s)
Appearance:
Mr. Raghavendra, Advocate For the Appellant Mr. Parashiva Murthy, A.R. For the Respondent Date of Hearing: 16/09/2016 Date of Decision: 20/09/2016 CORAM :
HON'BLE SHRI S. S. GARG, JUDICIAL MEMBER Final Order No. 20795/2016 The present appeal is directed against the Order-in-Appeal No. 423/2013 CUS (B) dated 13.11.2015, passed by the Commissioner (Appeals) vide which he has upheld the Order-in-Original and rejected the appeal of the appellant.
2. Briefly, the facts of the present case is that the appellant was importing Mechanical seals from their related company, M/s S.K.F. Sweden and their associates companies. Since the appellant is deemed to be related to their foreign suppliers, the Department referred the matter to SVB Mumbai for investigation. The appellant was paying 1% EDD (Extra Duty Deposit) for their imports and the Bills of Entry were provisionally assessed. The Assistant Commissioner, Air Cargo complex, Bangalore finalized the Bills of Entry vide order dated 21.3.2012 and based on this order, the appellant filed a refund claim dated 7.7.2012. The Department directed the appellant to furnish the documents and their books of accounts. The appellant filed the reply vide their letter dated 10.10.2012. The Assistant Commissioner rejected the refund claim on the ground of unjust enrichment. Aggrieved by the same, the appellant filed appeal before the Commissioner (Appeals) and the learned Commissioner (Appeals) vide impugned order rejected the appeal and upheld the impugned order passed by the lower authority. Aggrieved by the same, the appellant is before this Tribunal.
3. Heard both the parties and perused the records.
4. The learned counsel for the appellant submitted that EDD was paid in terms of the Boards Circular Nos. 1/98 Cus dated 1.1.98 and 11/2001-Cus dated 23.2.2001 as security deposit during the pendency of the investigation by SVB and hence, the same is in the nature of security deposit with the Department. He further submitted that the provisions of Section 27 of Customs Act, 1962 are not applicable in the refund of security deposit. He also submitted that EDD was paid on pending investigation by SVB and hence, the refund has to be sanctioned automatically on finalization of provisional assessment by SVB without even an application for refund. He also submitted that EDD is not duty of Customs as per Section 2(15) of the Customs Act, 1962 and is not charged / collected as per Section 12 of the Customs Act, 1962 and the Customs Tariff Act, 1975. He also submitted that once it is proved that EDD is in the nature of security deposit with the Department then the principles of unjust enrichment is not applicable for refund of the same. In support of this submission, he relied upon the following decisions :
(i) C.C., Chennai Vs. Minerva Trade Links (P) Ltd. [2009 (233) E.L.T. 399 (Tri.-Chennai)
(ii) C.C., Chennai Vs. Madras Fertilizers Ltd. [2014 (299) E.L.T. 465 (Tri.-Chennai)]
(iii) V.R. Equipment Ltd. Vs. C.C.(I), Mumbai [2007 (217) E.L.T. 277 (Tri.-Mum.)]
(iv) C.C., Bangalore Vs. Ecomaster (India) Pvt. Ltd. [2007 (213) E.L.T. 281 (Tri.-Bang.)]
5. On the other hand, learned A.R. for the Revenue reiterated the findings in the impugned order and submitted that in order to get the refund, the appellant has to satisfy all the conditions set-forth for the refund under the provisions of Section 27 of the Act as held by the Honble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. reported in 2005 (181) E.L.T. 328 (S.C.). He further submitted that the appellant has not produced any proof that the incidence of duty burden has not been passed on by him and refund amount was shown as receivable in their books of accounts during the relevant period.
6. After considering the submissions of both the parties and on perusal of the records and the judgments cited supra, I am of the considered opinion that the case of the appellant is squarely covered by the judgments cited supra. Further, I find that in the judgments cited supra, various Benches of the Tribunal has consistently held that EDD (Extra Duty Deposit) is in the form of security and the doctrine of unjust enrichment is not applicable in the case of refund of EDD. Further, I find that in the case of Ecomaster (India) Pvt. Ltd. (supra), the Division Bench of this Tribunal in the Revenues appeal has held in Paragraphs 3 & 4 as under :
3. The Revenue is aggrieved with the order and contended that the incidence of duty has been passed on to the buyers and hence, the refund is hit by unjust enrichment.
4. We have carefully considered the matter and perused the impugned order. We find that the amount paid by the assessee was not Customs duty on any imported items but was only a deposit of extra amount. They are asking refund of the same. The Commissioner (Appeals) has taken a correct view that the amount deposited is more than the duty amount and the same is refundable. We agree with the findings of the Commissioner (Appeals). There is no merit in the appeal and the same is rejected.
7. In view of the above discussion, the impugned order is not sustainable in law. Therefore, I set aside the same by allowing the appeal of the appellant with consequential relief, if any.
(Pronounced in open court on 20/09/2016) (S. S. GARG) JUDICIAL MEMBER /vc/