2023 (3) TMI 1547 - AT - Customs

Tribunal Orders Reassessment of Refund Claims, Emphasizes Final Assessment Date for Timely Filing Under Notification No. 102/2007-Cus.

Bharat Ship Breakers Corporation, Rishi Ship Breakers Versus Commissioner of Customs, Jamnagar (Prev.)

The Tribunal set aside the impugned orders, allowing the appeals and directing the original authority to reassess the refund claims on merits. It ... Time limitation - Refund claims under Notification No. 102/2007-Cus dated 14.09.2007 - rejection on the ground of time-bar as the refund claims were filed after one year from the date of payment of Customs duty - HELD THAT:- As per the N/N. 102/2007-Cus as amended by N/N. 93/2008-Cus dated 01.08.2008, the refund claim of SAD has to be filed within one year from the date of payment. However, in the present case the assessment was provisional and thereafter it was finalized which was undisputed and accepted by the Commissioner (Appeals) in his order. The refund was filed within one year from the date of finalization of assessment. In these facts, it is found that when the assessment is provisional, it cannot be said that the duty which was paid during the provisional assessment was a final payment of duty. Final payment of duty is confirmed as and when the assessment of Bills of Entry is finalized. Therefore, the date of finalization of bills of entry should be reckoned as the actual date of payment and refund filed within one year from finalization of assessment to be treated as refund claim filed within one year. This issue has been considered in the case of Suzuki Motorcycle India P. Limited [2017 (1) TMI 526 - CESTAT NEW DELHI] wherein the Tribunal has held that 'the appellant filed the refund claim even before finalization of assessment, guided by CBEC Circular dated 29-7-2010 as a precautionary measure. We also note that the said circular was partly held to be not sustainable by the Hon’ble Delhi High Court in the said case, insofar as it stipulates that the provisions of Section 27 ibid do not apply to this Notification. Considering the above factual position and noting that appellant did file the refund application, though before finalization of assessment, we are of the view that the claim cannot be rejected as time-barred.' From the above decision it can be seen that identical issue involved in the present case and the ratio of the above decision is clearly applicable to the present case. As regards the submission of learned Authorised Representative and his reliance on the judgment of Bombay High Court in the case of M/S. CMS INFO SYSTEMS LIMITED VERSUS THE UNION OF INDIA & OTHERS [2017 (1) TMI 786 - BOMBAY HIGH COURT] and Chennai bench decision in the case of Tranasia Bio-Medicals Limited [2019 (9) TMI 1563 - CESTAT CHENNAI], it is found that in both the cases there was no assessment provisional and thereafter final assessment, therefore, ratio of decisions is not applicable. Accordingly, the refund filed is well within the time as prescribed under Notification No. 102/2007-Cus and refund is not time-barred. Accordingly, the impugned orders are set-aside and the appeals are allowed. Issues:Refund claim rejection under Notification No. 102/2007-Cus on grounds of time-bar due to filing after one year from payment of Customs duty.Analysis:The appeals were against the order-in-appeal upholding the rejection of refund claims under Notification No. 102/2007-Cus due to being filed after one year from Customs duty payment. The appellant argued that the refund was filed within one year of final assessment after provisional assessment. The Revenue contended that the refund claim should be filed within one year from the date of payment of Special Additional Duty of Customs. The Tribunal noted the amendment in Notification No. 102/2007-Cus and considered the finalization of assessment as the actual date of payment. The Tribunal referred to the case of Suzuki Motorcycle India P. Limited, where it was clarified that the refund application should be lodged within one year, regardless of provisional or final assessment.The Tribunal found that the refund claim was filed within the prescribed time under Notification No. 102/2007-Cus as the assessment was provisional and later finalized. The Tribunal emphasized that the finalization of assessment should be considered as the actual date of payment. The Tribunal referred to the Circular issued by CBEC clarifying the time limit for filing refund claims in cases of provisional assessment. The Tribunal set aside the impugned order, directing the original authority to examine the refund claim on merits and grant refund if eligible, ensuring a personal hearing for the appellant.The Tribunal distinguished the cases cited by the Revenue, noting that those cases did not involve provisional assessment followed by final assessment. Therefore, the Tribunal concluded that the refund claim was filed within the prescribed time under Notification No. 102/2007-Cus and was not time-barred. Consequently, the impugned orders were set aside, and the appeals were allowed based on the specific circumstances of the case. The Tribunal highlighted the relevance of the decision in Suzuki Motorcycle India P. Limited to the present case, emphasizing the importance of final assessment in determining the time limit for filing refund claims under the notification.