TaxTMI 
TaxTMI 
TaxTMI 
2021 (4) TMI 124
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....t claims to have paid "5% BCD instead of 2.5% BCD" in respect of total 10 Bills of Entry and claims to have paid excess amount ofRs. 2,79,924/-towards Basic Customs duty (BCD) and claims to have paid 4%SAD in excess in Bill of Entry No. DTA/673/2010-11 dated 27-07-2010. Refund claims of excess BCD of Rs. 2,79,924/- and SAD of Rs. 54,733/-were filed, which were rejected by O-I-O/O-I-A earlier on the grounds that there were no provisions and powers for allowing Refund under SEZ Act/Rules. Hence, Appellant have challenged such Order sup to CESTAT twice. This CESTAT vide order No. A/11387-11388/2015 dated 05-10-2015, remanded matters to proper officer of Customs at SEZ, Sachin, Surat with directions to examine Refund claims under Customs Act 1962, following decision of Gujarat High Court in Anita Exports vs. UOI-2015 (320) ELT-743 (Guj.),and to dispose of claims on merits as per the law. Revenue rejected refunds again by second O-I-O/O-I-A on similar grounds. In the meanwhile, amendment were made in SEZ Rules on 05.08.2016, by inserting new Rule 47(5) in SEZ Rules 2006, empowering authority under Central Excise and Customs to deal with refund cases pertaining to the SEZ units. This CES....
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....of Article 265 of the Constitution of India. He has relied upon decisions of the Hon'ble Supreme Court of India to support his arguments. 4. Shri. Sanjiv Kinker, Learned Superintendent (Authorised Representative) appearing on behalf of Revenue has objected this Appeal by submitting that it seems the reliefs claimed by the Appellant are untenable and accordingly may be set aside as Appellant has filed refund without challenging assessment. SDR has mainly relied upon the following decisions:- * 2019 (368) E.L.T. 216 (S.C), ITC Ltd. Vs CCE * 2020(371)ELT-501(DEL)- CCE vs NANGALAMAL SUGAR COMPLEX * 2014 (305) E.L.T. 98 (Cal.) - SPS STEEL ROLLING MILLS LTD vs CESTAT 5. As against above argument by SDR, shri Jadeja has vehemently argued that it is settled law that Show Cause Notice is foundation in case of revenue, may it be matter of levy and recovery of duty or the refunds. It is settled that for building any such case, revenue has to consolidate all their points against an assessee and incorporate in Show Cause Notice and also to provide opportunity to Assessee to defend their case in compliance to principles of Natural Justice. The view not incorporated in SCN may be seen fro....
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....18 dated 12-09-2018 passed by the Learned Commissioner (Appeals), CGST & Central Excise, Vadodara on two grounds (1) eligibility to Refund and (2) no powers under SEZ Act. However, in the facts and circumstances of this case, I find that findings of Commissioner (Appeals) are not correct as under Section 30 of the SEZ Act 2005, goods removed from SEZ to DTA are chargeable to customs duties. Hence, such excess duty paid as Customs duty can only be claimed as Refund under section 27 of Customs Act 1962. Customs authorities have inherent powers under Customs Act 1962 to process the Refunds. Accordingly, this Tribunal vide final orders dated 05- 10-2015 and 16-08-2016, has directed to process refund claims under Customs Act 1962. The view that no provisions exist in SEZ Act for grant of refund is incorrect. CBIC Circular No. 11/2017-Cus dated 31-3-2017 has clarified in Para 3.3, question how old cases of refund pending as on the date of coming into effect of Notification dated 05-08-2016 will be sanctioned by Customs, Central Excise or Service Tax or CGST authorities. Inserted Rule 47(5) in SEZ Rules 2006 empowers Customs officers to issue refund claims. All field officers are bound to....
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.... relied upon by Appellant support this factor. 8. On the question of "Unjust enrichment", Appellant had submitted relevant documents at the time of filling Applications for Refund, which have also not been disputed. These documents, certificates and declarations submitted by the importers, supported by certificate from Chartered Accountant indicated and established that incidence of excess duty paid was not recovered from any other person. Certificate by the Statutory Auditor of M/s Suchi Fastners PVT Ltd and Chartered Accountant M/s. AMIN PARIKH & CO. submitted by Appellant also shows that in respect of the respective said 10 Bills of Entry, though, Appellant had charged total amount of Rs. 2,79,924/- and of Rs. 54,733/- in their Invoices, but they have not received/recovered the same from DTA buyers. Therefore, incidence of Rs. 2,79,924/- and Rs. 54,733/- paid against said 10 Bill of Entry have not been recovered from any other person or customers and has been absorbed by M/s Suchi Fastners PVT Ltd. Further, Declarations submitted by DTA importer with their CA Certificates also show that they have also not recovered excess amount of duty from any other persons. These documents a....