2023 (11) TMI 404 - AT - Customs

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 ... Refund of voluntarily deposited Anti Dumping Duty where final assessment did not record such duty - requirement to challenge final assessment order as condition precedent to refund claims - voluntary deposit versus levy assessed in final assessment - recovery of alleged erroneous refund where refund correctly grantedRefund of voluntarily deposited Anti Dumping Duty where final assessment did not record such duty - voluntary deposit versus levy assessed in final assessment - requirement to challenge final assessment order as condition precedent to refund claims - Whether the appellant was entitled to refund of Anti Dumping Duty paid without challenging the final assessment of the bills of entry when the final assessment did not record any levy of Anti Dumping Duty and the duty was not leviable at the relevant time. - HELD THAT: - The Tribunal found on the record that the sample bills of entry which constituted final assessment orders contained no reference to Anti Dumping Duty because ADD was not leviable at the relevant time. The payments made by the appellant were voluntary manual deposits made on departmental advice and were not part of any assessment or reassessment of the bills of entry. There was no endorsement or reassessment order constituting a final assessment of ADD against the appellant; any isolated system endorsement did not amount to a final assessment. The Supreme Court authority relied upon by the revenue applies where the duty claimed as refundable formed part of a final assessment and thus required challenge; that principle is inapplicable where, as here, no ADD was assessed in the final assessment. In these circumstances the appellant was entitled to refund of the voluntarily deposited ADD without having to first challenge the bills of entry which did not assess ADD. [Paras 5]Refund claim allowed: appellant entitled to refund of the Anti Dumping Duty voluntarily deposited as the duty was not leviable and not part of the final assessment of the bills of entry.Recovery of alleged erroneous refund where refund correctly granted - consequential setting aside of recovery order following allowance of refund appeal - Whether the recovery order confirming erroneous refund survives after holding that the refund was lawfully payable. - HELD THAT: - The Tribunal held that because the appellant was entitled to the refund (having paid ADD which was not leviable and which was not part of the final assessment), the departmental order seeking recovery of the refund as erroneous could not survive. The order-in-original confirming recovery was therefore set aside as consequential to allowing the refund appeal. [Paras 6]Impugned recovery order set aside and consequential relief granted to the appellant.Final Conclusion: Appeal allowed; refund of voluntarily deposited Anti Dumping Duty granted because no ADD was leviable or assessed in the final bills of entry, and the consequent recovery order treating the refund as erroneous is set aside. 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 OrderThe 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 AppellantThe 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.