2018 (8) TMI 430 - AT - Customs

Tribunal allows refund claim due to provisional invoice, RBI approval, challenges assessment order, remits shipping bill for duty refund.

Commissioner of Customs & Central Excise, Guntur Versus Alfa Exports (EOU)

Commissioner of Customs & Central Excise, Guntur Versus Alfa Exports (EOU) - 2019 (370) E.L.T. 648 (Tri. - Hyd.) Issues Involved:1. Whether the appellant can claim a refund of export duty without challenging the assessment order.2. Determination of the relevant date for the value of export goods when there is a fluctuation in price post-export.3. Whether the invoice was provisional and its implications on the refund claim.4. The role of the Reserve Bank of India’s approval in the reduction of invoice value.Detailed Analysis:Issue 1: Claiming Refund Without Challenging the Assessment OrderThe primary issue was whether the appellant could claim a refund without challenging the assessment order. The lower authority denied the refund under Section 27 of the Customs Act, arguing that the assessment was final. The appellant contended that the reliance on the Supreme Court decision in 'Flock India Pvt. Ltd.' was misconceived. The First Appellate Authority held that filing a refund claim itself is a challenge to the assessment order, referencing the Tribunal’s decisions in 'Aditya Birla Nuvo Ltd.' and 'Jindal Vijayanagar Steels Ltd.' This position was upheld, indicating that a separate appeal against the assessment order was unnecessary as the refund claim itself constituted a challenge.Issue 2: Relevant Date for Value Determination Post-ExportThe second issue was whether re-determination of the value was permissible after export due to price fluctuations. The lower authority cited Section 14 and 16 of the Customs Act, concluding that price fluctuations post-export were irrelevant to duty assessment. However, the appellant argued that the transaction was at arm's length and supported by documentary evidence, including the RBI's approval for a reduced invoice price. The First Appellate Authority found that the invoice was provisional and the RBI's approval validated the reduced price, distinguishing the case from 'M.R.F. Ltd. vs. CCE Madras.'Issue 3: Provisional InvoiceThe invoice in question was marked as provisional, which was undisputed by the lower authority. The First Appellate Authority noted that the invoice's provisional nature and the RBI’s approval for a reduced price justified the refund claim. The Tribunal confirmed that the shipping bill was assessed provisionally, as indicated by the assessing officer’s endorsement, and had not been finalized.Issue 4: RBI’s ApprovalThe RBI's letter dated 05.11.2008 permitted the reduction in invoice value from USD 24,13,623.28 to USD 6,00,500. The First Appellate Authority and the Tribunal emphasized that the RBI's approval lent credibility to the appellant's claim and supported the refund.Conclusion:The Tribunal upheld the First Appellate Authority’s decision, allowing the refund claim based on the provisional nature of the invoice, the RBI’s approval, and the interpretation that filing a refund claim challenges the assessment order. The Tribunal remitted the issue of finalizing the shipping bill to the assessing officer, who must finalize it in accordance with the law and refund the differential duty paid.