2022 (4) TMI 87 - AT - Central Excise

Customs duty exemption confirmed based on valid certificate of origin. Refund granted for Countervailing Duty claim.

The Tribunal confirmed the appellant's entitlement to exemption from customs duty under Notification No. 26/2000 based on a valid certificate of origin ... Refund of Countervailing duty (CVD) - time limitation - case of Revenue is that right of availment of CENVAT credit was with the appellant since the year 2005 and hence the same should have been availed at the relevant time itself - HELD THAT:- It is true that additional duty levied under section 3 of Customs Tariff Act, 1975 is in the nature of a countervailing duty to protect the interest of the domestic manufacturers and it is permissible under Cenvat Credit Rules, 2004 for it to be treated as Cenvat Credit. However, any refund of unutilized Cenvat Credit can be taken if it fulfils the conditions under section 11B of Central Excise Act, 1944. In the present case, the CVD was paid on 07.03.2005. However the refund in question has been filed pursuant to the Final order of this Tribunal dated 04.10.2017 The relevant date in terms of section 11B of Central Excise Act for the impugned relief, was to be the date of this Final Order. The refund claim has been filed on 18.3.2018, i.e. well within the period of said one year from the relevant date. The appellant has contended that they were not able to utilise the Cenvat Credit during the relevant period. Keeping in view that the certificate of origin was alleged to be incorrect, based whereupon the show cause notice was issued in the year 2005 itself. Nothing has been produced by the department to prove the said allegation. Per contra the Certificate of origin is admittedly on record. Presumption of correctness is attached thereto. Same has not been rebutted by the department. Appellant in addition has produced the documents i.e. invoices etc. - all requirement of section 11B Central Excise Act have been met with by the appellant. Accordingly the appellants are entitled for the refund of CVD along with the interest to be calculated from the date of payment thereof. There being apparent delay on part of the department authority in passing final assessment order. The appellant is held to be entitled to the refund of the CVD with consequential benefits - Appeal allowed - decided in favor of appellant. Issues Involved:1. Entitlement to exemption from customs duty under Notification No. 26/2000.2. Validity of the certificate of origin from Sri Lanka.3. Provisional release conditions and subsequent payment of Countervailing Duty (CVD).4. Rejection of refund claim for CVD.5. Applicability of the limitation period for refund claims under Section 27 of the Customs Act and Section 11B of the Central Excise Act.Detailed Analysis:1. Entitlement to Exemption from Customs Duty under Notification No. 26/2000:The appellants claimed the benefit of exemption from customs duty under Notification No. 26/2000 based on a certificate of origin from Sri Lanka. The department challenged the certificate and denied the exemption claim, leading to the seizure of goods. The Tribunal's Final Order dated 4.10.2017 confirmed the appellant's entitlement to the exemption, setting aside the denial of exemption from customs duty.2. Validity of the Certificate of Origin from Sri Lanka:The department alleged that the certificate of origin contained incorrect information, which led to the issuance of a Show Cause Notice. However, the Tribunal found no evidence from the department to prove the allegation. The certificate of origin was considered valid, and the presumption of its correctness was not rebutted by the department.3. Provisional Release Conditions and Subsequent Payment of CVD:The goods were provisionally released subject to the payment of CVD and execution of a bond and bank guarantee. The appellant paid the CVD amounting to Rs. 8,68,669/- on 07.03.2005 and executed the bond. The Tribunal's Final Order dated 4.10.2017 confirmed that the appellant was not liable to pay the CVD, leading to the filing of a refund claim.4. Rejection of Refund Claim for CVD:The refund claim for CVD was initially rejected on the grounds that it was barred by time under Section 27 of the Customs Act. The department argued that the right to avail CENVAT credit existed since 2005 and should have been utilized then. The Tribunal, however, held that the refund claim was filed within one year from the date of the Tribunal's Final Order, making it timely under Section 11B of the Central Excise Act.5. Applicability of the Limitation Period for Refund Claims:The Tribunal emphasized that the relevant date for filing the refund claim was the date of the Tribunal's Final Order (04.10.2017), not the date of initial payment of CVD. The refund claim filed on 18.03.2018 was within the one-year limitation period from the relevant date. The Tribunal also referenced the case of Pioneer India Electronics (P) Ltd. Vs Union of India, which supports the view that the period to claim a refund starts from the date of final assessment, not provisional payment.Conclusion:The Tribunal concluded that the appellant met all requirements under Section 11B of the Central Excise Act and was entitled to a refund of the CVD along with interest from the date of payment. The order rejecting the refund claim was set aside, and the appeal was allowed with consequential benefits.(Pronounced in the open Court on 30-03-2022)