Appellant entitled to refund of Anti Dumping Duty paid as deposit when duty not leviable at relevant time

CESTAT Ahmedabad allowed the appeal for refund of Anti Dumping Duty. The appellant paid ADD without it being part of the final assessment of Bills of Entry, as the duty was not leviable at the relevant time. The court distinguished this case from ITC Ltd SC precedent, ruling that since ADD was not included in the final assessment order and was merely a deposit, no challenge to the assessment order was required for refund. The tribunal held the appellant entitled to refund as the duty was admittedly not leviable, setting aside the impugned order.

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Issues Involved:
1. Validity of filing a refund application without challenging the assessment order under Section 17(4) of the Customs Act, 1962.
2. Entitlement for refund of Anti Dumping Duty (ADD) paid by the appellant.

Summary:

Issue 1: Validity of Filing Refund Application Without Challenging the Assessment Order

The primary issue in this case was whether the filing of a refund application without challenging the assessment order under Section 17(4) of the Customs Act, 1962, is valid. The appellant had imported goods from Singapore and cleared them without paying Anti Dumping Duty (ADD) as the notification levying ADD had expired. The appellant voluntarily deposited a total amount of Rs. 53,23,671/- in anticipation of ADD, even though it was not applicable after 29.07.2015. The appellant later filed a refund claim for this amount. The Deputy Commissioner sanctioned the refund, but this decision was reviewed and challenged by the department, leading to a series of appeals.

The appellant argued that the ADD payment was not part of the final assessment of the bills of entry and therefore, there was no need to challenge the assessment order to claim a refund. The department, however, relied on the Supreme Court judgment in the case of ITC Ltd, which mandates challenging the final assessment order to claim a refund. The Tribunal found that the final assessment of the bills of entry did not mention ADD, and thus, the appellant did not need to challenge the assessment order to claim a refund. The Tribunal concluded that the rejection of the refund claim by the department was incorrect and illegal.

Issue 2: Entitlement for Refund of ADD Paid by the Appellant

The Tribunal noted that the ADD paid by the appellant was not leviable at the relevant time, as confirmed by the department. The payment of ADD was considered a deposit rather than a statutory levy. The Tribunal emphasized that since the ADD was not part of the final assessment order, the appellant was entitled to a refund without challenging the assessment order. The Tribunal also observed that any endorsement regarding ADD payment on the system was not communicated to the appellant as part of the final assessment order. Consequently, the Tribunal held that the appellant was legally entitled to the refund claim.

Conclusion:

The Tribunal set aside the impugned orders and allowed the appeals, granting the appellant the refund of ADD paid. The Tribunal also set aside the order for the recovery of the erroneous refund, as the refund was deemed valid.

Pronounced in the open Court on 08.11.2023.

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