TaxTMI 
TaxTMI 
2024 (6) TMI 352
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.... dated 16.03.2015 on the ground that they had deposited EDD at the time of importation of goods. 2.2 Original Authority vide order dated 15.06.2018 rejected the refund claim filed by the appellant. 2.3 Aggrieved appellant have filed appeal before Commissioner (Appeals), who vide the impugned order referred in para-1 above rejected the appeal filed by the appellant. 2.4 Aggrieved appellant have filed this appeal. 3.1 We have heard Shri Atul Gupta learned Counsel appearing for the appellant and Shri Manish Raj learned Authorised Representative appearing for the revenue. 3.2 Learned Counsel appearing for the appellant submits that- * The amount which was deposited lying as security to be adjusted towards duty, as the SVB accepted the value declared and the security deposit was not adjusted towards any duty at any time, the provisions of refund of duty would not be applicable to refund of security amount. * The amount was deposited in terms of CBEC instructions was not a duty paid provisionally, but the security deposit for provisional assessment. * In terms of provisions of Section 18(2), the refund is required to be granted where the amount deposited in excess. 3.3 Learne....
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....f their refund claim with the department that the aforesaid Bill(s) of entry were finalized without their knowledge. The case laws cited by the appellant is not relevant in their present case as the final assessment of the Bills of entry had been finalized by the Competent authority in the light of SVB Order dated 16.03.2015. I do not find any force in the contention of the appellant. 8. I observe that the appellant has raised the question in their grounds of appeal in respect of applying the period of limitation as prescribed in terms of Section 27 of Customs Act'1962 as the same will not be applicable in their case. I find that it is an admitted fact that the present refund claim was filed by the appellant under Section 27 of Customs Act' 1962. In his application dated 01.05.2018, the appellant submitted that "We wish to lodge this claim for refund of extra duty deposit under Section 27 of Custom Tariff Act in pursuance of SVB Order File No.5/9-139-GATT GVC & Order No 1322/AC/SVB/AB/DAB/2014-15 dated 16.03.2015", hence applicability of Section 27 of Customs Act' 1962 is sustainable. 1 also find that it is required to file application for refund claim to the competen....
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....n 1(B) (c) of Section 27 of Customs Act' 1962 which they failed to do so. 10. I also place reliance in the decision of CESTAT in the case of GMMCO Ltd Versus Commissioner of Customs, Chennai [2004(177) E.L.T.848 (Tri.- Chennai), wherein, Hon'ble Tribunal has held that: Refund Limitation - Provisional assessment Even where any duty is paid as provisionally assessed under Section 18 of Customs Act. 1962. period of limitation under sub-section (1) of Section 27 ibid is applicable to a claim for refund of duty consequential to finalisation of provisional assessment - Provisions of Section 27 ibid cannot be given a go-by in context of claiming refund of duty consequential to finalisation of provisional assessment - Explanation II to Section 27(1) ibid recognised pre-existing applicability of Section 27 ibid to such refund claim. [para 9] Refund - Provisional assessment Refund arising from finalisation of provisional assessments under Section 18 of Customs Act, 1962 would have to be claimed under Section 27 ibid because until provisional assessments are finalised, the assessee has no cause of action for refund. [para 11] Refund - Extra duty paid by appellants on 8.3% load....
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.... information has not been furnished and the proper officer deems it necessary to make further enquiry, the proper officer may direct that the duty leviable on such goods be assessed provisionally if the importer or the exporter, as the case may be, furnishes such security as the proper officer deems fit for the payment of the deficiency, if any, between the duty as may be finally assessed or re-assessed as the case may be, and the duty provisionally assessed. (2) When the duty leviable on such goods is assessed finally or reassessed by the proper officer in accordance with the provisions of this Act, then - a. in the case of goods cleared for home consumption or exportation, the amount paid shall be adjusted against the duty finally assessed or re-assessed, as the case may be, and if the amount so paid falls short of, or is in excess of the duty finally assessed or re-assessed, as the case may be, the importer or the exporter of the goods shall pay the deficiency or be entitled to a refund, as the case may be; b. in the case of warehoused goods, the proper officer may, where the duty finally assessed or re-assessed, as the case may be, is in excess of the duty provisionally a....
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....18 (5) is independent provision and not sub servant to Section 27 of the Customs Act, 1962. For the amounts to be refunded in terms of Section 18 (2) read with Section 18 (5) no separate claim for the refund is required to be made and the refund becomes automatically due and is to be granted within three months of finalization of assessment. 4.7 Hon'ble Supreme Court has in acse of Mafatlal Industries [1997 (89) ELT 247 (SC)] has observed as follows: "95. Rule 9B provides for provisional assessment in situations specified in Clauses (a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that "when the duty leviable on the goods is asssessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be". Any recoveries or refunds consequent upon the adjustment un....