2022 (1) TMI 574

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....d 03.02.2011, the appellant claimed benefit of preferential rate of Customs (Basic Duty) duty at the rate of 3% ADV under Notification No.153/2009 Customs dated 31.12.2009 as amended. As desired by the proper officer while provisional assessment, appellant has deposited Rs. 16,39,458/- under protest with a bank guarantee and also a bond of Rs. 20,49,580 as ordered by the Assistant Commissioner for allowing provisional assessment of said Bill of Entry filed by the appellant. Accordingly, provisional assessment was ordered and during the process of assessment, proper officer had examined goods and drawn samples from the consignment. Appellant produced all relevant documents desired by the Officers for finalizing the assessment accordingly, the bill of entry No.08/10-11 dated 03.02.2011 was finally assessed by the proper Officers on 11.10.2011. Intimation of final assessment was also issued by Customs vide letter No. BE No.F-08/10-11 dated 02.12.2011 wherein, it has been intimated to the appellant that final assessment was completed determining Customs Duty of Rs. 81,97,292/- and entire duty of Rs. 81,97,292/- paid on provisional assessment was adjusted and appropriated as finally ass....

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....16,39,458/-. Thus, having deposited entire provisional duty Rs. 16,39,458/- was only security deposit and not a duty. Therefore, neither the time limit nor provision of unjust enrichment as provided under Section 27 will apply for returning of Security deposit. He placed reliance on the judgment of Hon'ble Supreme Court in Para 95 in the case of MAFATLAL INDUSTRIES LTD v/S. UOI- 1997 (89) E.L.T. 247 (S.C.) wherein, it was held that no recoveries or refund consequent upon the adjustment under Sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B as the case may be. He further submits that on finalization of provisional assessment it is obligatory on the revenue officers to refund the amount for which even no refund application is required. 2.1 He placed reliance on the decision of the Hon'ble Gujarat High Court in the case of CC Vs. HINDALCO INDUSTRIES LTD- 2008 (231) E.L.T.36 (Guj.). He further submits that the security deposit was paid under protest therefore, in view of the judgment of Hon'ble Gujarat High Court in the case of M/S. CONTEMPORARY PACKAGING TECHNOLOGIES PVT LTD Vs. UOI- 2014 (299) E.L.T. 439 (Guj.) wherein, it was held that excess duty paid u....

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....ifferential custom duty as is evident from the above bond. It is further observed that the appellant has paid this amount of Rs. 16,39,458/- vide TR6/GAR 7 Challan No.CUS/36/10-11 dated 03.02.2011, the same is scanned below:- From the aforesaid challan, it can be seen that under the Head of Account it is a customs duty which was paid under account heading No.0037 and also in the description coloumn it is clearly mentioned that the deposit of amount is equal to 20% of provisional duty therefore, the amount of Rs. 16,39,458/- has been paid as customs duty only therefore it is not a deposit as has been claimed by the appellant but it is a custom duty. Since in view of the above documentary evidence, it is established that the amount for which refund was sought for by the appellant is not a deposit but it is a duty. Therefore, the refund is clearly governed by Section 27 of the Customs Act, 1962 therefore, all the provision of limitation and unjust enrichment, etc is clearly applicable. 05. Accordingly, the impugned order is set aside. Appeal is dismissed. (Pronounced in the open court on 13.01.2022) ============= Document 1 भारतीय ए....

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....the goods subject the importer's production within 30 days from the date of a valid license to cover import of the goods mentioned in the schedule or proving to the satisfaction of the proper officer that Import Trade Control License Number not Produced by importer is valid for and covers the entire goods mentioned in the schedule below and upon importer agreeing to furnishing such bond as in herein contained. NOW THE CONDITION OF THE ABOVE WRITTEN Bond is such that: 1. If the importer shall within one month or within such extended period as the proper officer may allow, produce such documents and furnish such information as may be called for the proper officer and, 2. If the importer pays to the President the difference between the duty finally assessed and the duty provisionally assessed in the respect of the goods mentioned in the schedule below and, 3. If the importer deliver or cause to be delivered to the proper officer within one month demand being made by the proper officer a valid import license covering to their goods mentioned in the schedule below and, 4. If the importer pays to the President any penalty and fine that may ....