TaxTMI 
TaxTMI 
2023 (12) TMI 384
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....Customs Authorities by virtue of Customs Tariff (Determination of Origin of Goods under the Comprehensive Economic Partnership Agreement between the Republic of India and Japan) Rules, 2011, implemented by Notification No.55/2011-Cus (NT) dated 01.08.2011. 2.1 The respondent filed 27 Bills of Entry during the period 14.05.2018 to 27.05.2019 for the clearance of the said goods. The respondent paid the Basic Customs Duty at the rate applicable and the goods were allowed to be cleared for home consumption. Thereafter, the respondent filed 3 refund claims dated 10.05.2019, 21.11.2019 & 23.05.2020. The Country of Origin Certificate has been issued retroactively in terms of the Notification No.55/2011-Cus (NT) dated 01.08.2011. 2.2 Initially, the said refund claims were entertained by the Adjudicating Authority, who held that the bar of unjust enrichment is not applicable to the facts of this case. The Certificate of Country of Origin is found in order, but rejected the refund claims on the basis of the judgment of the Hon'ble Apex Court in the case of ITC Limited Vs, Commissioner of Central Excise, Kolkata IV reported in 2019 (360) ELT 216 (S.C.) holding that without challenge/mod....
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....nnot be raised. 5.2 He further submitted that the decision of ITC Limited (supra) is not applicable to the present facts and circumstances of the case. 6. Heard both sides and considered the submissions. 7. One the basis of arguments advanced by both sides, the following issues are decided by this Tribunal : (a) Whether in the facts and circumstances of the case, the decision of ITC Limited Vs, Commissioner of Central Excise, Kolkata IV reported in 2019 (360) ELT 216 (S.C.) is applicable or not ? (b) Whether the bar of unjust enrichment is applicable to the facts and circumstances or not ? Issue (a) Whether in the facts and circumstances of the case, the decision of ITC Limited Vs, Commissioner of Central Excise, Kolkata IV reported in 2019 (360) ELT 216 (S.C.) is applicable or not ? 8. We find that the facts, which are not in dispute, are that the respondent filed 27 Bills of Entry for import of the goods from the country of Japan. At the time of assessment of Bills of Entry, the respondent paid the duty and got cleared the goods for home consumption. Thereafter, in terms of Customs Tariff (Determination of Origin of Goods under the ....
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.... given by the competent government authority of the exporting party or its designees and the same certification num ber shall not be used again in issuing another certificate of origin. (f) in the event of theft, loss or destruction of the original certificate of origin before the expiration of its validity, the exporter or its authorized agent may request the competent governmental authority of the exporting Party or its designees to issue a new certificate of origin with a new certification number on the basis of the export documents in their possession, in which case the original certificate of origin should be invalidated : Provided that the new certificate should bear in Box 8 of Appendix B to Annexure 2 the words "CERTIFIED TRUE COPY" : Provided further that the date of issuance and the certification number of the original certificate of origin should be indicated in the new certificate of origin. Provided that the new certificate of origin shall be valid during the original term of the validity of the original certificate of origin." As per the said Implementing Procedures, where the Certificate of Origin has issued for the time limit in Clause ....
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....of Entry. 12. Therefore, the rejection of refund claim initially by applying the decision of ITC case (supra) is not sustainable to the facts and circumstances of the case. 13. In that circumstances, the refund claims filed by the respondents are allowed. Issue (b) Whether the bar of unjust enrichment is applicable to the facts and circumstances or not ? 14. Now, in this case, the Revenue has raised another ground that the Appellant Revenue has failed to pass bar of unjust enrichment. We find that at the time of entertaining refund claim, the adjudicating authority initially observed as under : 15. At the initial stage, the ld.Adjudicating Authority has recorded his findings, which are as under : "9. Regarding Unjust Enrichment in terms of Section 27 (2) of the Customs Act, 1962, the importer has submitted a declaration mentioning that "we hereby declare that we are the manufacturer importer and we use the imported goods to manufacture our final product Graphite Electrode, which we export all over the world. Hence the question of the amount of duty in relation to which such refund is claimed was paid by us and the incidence of such duty has no....
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....9 3338638 dated 22.05.2019 NCTE-18-3045-10/14 dated 17.03.2019 NCTE-18-3045-10/11 dated 03.03.2019 ONEYTYBAD3442500 Dated 23.02.2019 ONEYTYBBC3547400 Dated 03.03.2019 ONEYTYBBC3548500 Dated 11+03.2019 ONEYTY8BC3550500 Dated 17.03.2019 190029723174301610 Dated 21.05.2019 190096727174401910 Dated 21.05.2019 190271975173001810 Dated 15.10.2019 700 MT 700 MT 700 мт 190030727174601910 Dated 21.05.2019 180 MT NCTE-18-3045-10/13 dated 17.03.2019 ONEYTYBBC3549600 Dated 17.03.2019 190063721174501410 700 NT Dated 21.05.2019 6. It is observed from the above table that in case of 9 Nos. Bills of Entry as at Sl. No. 1 to 9 the "Certificate of Origin" (as submitted by the said importer) have been issued beyond Nine months but within Twelve months from the date of shipment and in case of 11 Nos. of Bills of Entry as at 51. No.11 to 20 the same has been issued within Nine months from the date of shipment. All the 20 Nos. of Certificate of Origin has been marked issued Retroactively. Clause 3(a), 3(b) and 3(c) of Appendix-A to Annexure-2 of Notification No. 55/2011-Customs ....
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....ement between the Republic of India and Japan) Rules, 2011, namely:- 1. (1) These rules may be called the Custons Tariff (Determination of Origin of Goods under the Comprehensive Economic Partnership Agreement between the Republic of India and Japan) Amendment Rules, 2018. (2) They shall come into force on the 1st day of March, 2018. 2. In the Customs Tariff (Determination of Origin of Goods under the Comprehensive Economic Partnership Agreement between the Republic of India and Japan) Rules, 2011, in Appendix-A to Annexure-2, in sub-clause (b) of clause 3, for the words "wine months", the words "twelve months" shall be substituted." From the above clause 3(a), 3(b) and 3(c) of Appendix-A to Annexure-2 of Notification No. 55/2011-Customs (N.T.) dated 01.08.2011 and Notification No.14/2018-Customs (N.T.) dated 19.02.2018, it is observed that the above mentioned Bills of Entry supported by relevant Certificates of Origin are: eligible for refund of any excess customs duties paid over and above the concessional Rate of duty. 7. The above said importer has mentioned that they have paid excess Basic Customs Duty 610% instead of 82.7% of th....
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.... Basic) of COO Cart in Rs. Basic RS. (Basic + 5K5) (1) IGST 62.75+ S520) 8 (2) (5) (4) (5) (6) (7)-(5)-> (6) C8) (9) (1) - (K) 9045495 1. 2025048619 fated dated 29.11.2018 30.11.2018 238850000 67799730 43726230 24073500 6491845 17573655 2. 9158417 dated 2025148630 dated 107625000 33342225 23503475 411838750 3196462.50 8642287.50 07.12.2014 10.12.2018 5274690 2025271360 3. dated dated 15.12.2018 18.12.2018 107625000 33342225 21503475 11838750 3196412.50 8642287.50 3-372 4. dated dated 18.12.2018 19.12.2018 9543842 2025498888 107625000 33342225 21503475 11838750 3156432.50 364228.50 5. 6. 7. dated dated 07.01.2019 07.01.2019 5688864 2025613594 dated dated 17.01.2019 18.01.2019 966470 2025786535 dated 106875000 33109875 21353625 11756250 3174187.50 8582062.50 106875000 33309875 21353625 #11756250 3174187.50 8582062.50 31.01.2019 dated 31.01.2019 106150000 33504870 21608370 #11896500 3212055 86....
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....Schene) Scrip. 8 Селена «Обо вy JTENORA КОМÐЯ МЕСÐÐ, ПОСÐÐœ) ТÐЯ СÐРКО ПЕРЕСТОЯ CVETOMS-PREY-KOLКÐТРот завов 11.00 Document 5 File No. GEN/REV/OIA/1337/2021-Rev-O/o Commr-Cus-Prev-Kolkata (Computer No. 208828) 399003/2021/Rev-Olb Commr-Cus-Prev-Kolkata Regarding Unjust Enrichment in terms of Section 27(2) of the Customs Act, 1962, the importer has submitted a declaration mentioning that "We hereby declare that we are the manufacturer importer and we use the imported goods to manufacture our final product Graphite Electrode,, which we export all over the world. Hence, the question of the amount of duty in relation to which such refund is claimed was paid by us and the incidence of such duty has not been passed on by us to any other person". It appears that the above said declaration of the importer appears to be true since petroleum coke. and pitch coke are the basic raw materials for manufacturing of Graphite Electrode. It is also observed that M/s. Graphite India Limited is the....
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....iginal in respect of the claim". It may be mentioned that in a similar case of the same importer, the Assistant Commissioner (Audit), Commissionerate of Customs (Prev), West Bengal, Kolkata in view of the above paragraph opined the following comments after Pre-audit verification vide letter under C.No.111(10)15/IAD/CUS/MB/16/15803P dated 14.08.2019: 1. The importer has paid duty without any protest, assuming that duty. has been assessed properly as prescribed by law. 2. Every B111 of Entry which has been assessed to duty and duty has been paid without any protest, is an appellate order, and if the assessee feels that excess duty has been charged he has right to appeal against each assessment order. Since no such appeal has been filed against any subject B111 of Entry the assessee cannot agitate the assessment order. 3. Moreover, the assessment order has attained finality and the same cannot be re-opened by an officer equal in his official capacity. 4. As the assessee has failed to prove excess duty payment and no order of any Appellate Authority, with the consequent order has been produced, the sane deserve no consideration and dev....