2024 (6) TMI 1190

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....t of duty after the final assessment or date of re-assessment, as the relevant date for computation of period of limitation? (ii) Whether in the facts and circumstances of the case, the CESTAT is right in allowing the appeal of the respondent? 2. The CESTAT has allowed the appeal filed by the respondent which was preferred against the order of rejection of refund claim made by the respondent-assessee as time barred in view of the following facts. 2.1 The respondent-assessee is engaged in import of Liquified Natural Gas [LNG]. The respondent filed 16 Bills of Entry for clearance of imported LNG which was assessed provisionally under section 18 of the Act on execution of the bond. On production of the original document, the said Bills of Entry were assessed finally as under: Sr. no. B/E/ No. & Date TR6 Challan No. & Date (As per E- Receipt) Date of Final Assessment Qty.as per Bill of Lading / Provisionally assessed Bill of Entry (MMBTU) Qty as per final invoice/ finally Assessed bill of Entry (MMBtu) Custom Duty paid at the time of Pro-Assessment Custom Duty to be paid as per final invoice qty/Finally Assessed B/E. Refund claimed of....

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....Accountant stating that as required for examination of the principle of unjust enrichment before sanction of the refund under sections 27 and 28D of the Act wherein it was certified that the amount of custom duty paid against the Bills of Entry was shown as refund of custom duty under the head "Receivables" in the books of account and therefore, incidence of excess custom duty paid has not been passed on to the customers. 2.3 The Adjudicating Authority rejected, the refund claim of the petitioner as time barred because the date of final assessment was between 07.10.2015 and 20.10.2015 for aforesaid 16 Bills which was beyond the prescribed period of one year as per section 27 (1B)(c) of the Act which provides that where any duty is paid provisionally under section 18, the limitation of one year shall be computed from the date of adjustment of duty after final assessment thereof or in case of reassessment from the date of such reassessment. The adjudicating authority therefore after issuance of show-cause notice and considering the reply filed by the respondent-assessee, rejected the refund claim on the ground that the respondent-assessee filed the refund claim after one year from....

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....find that the case of the appellant is covered by the aforesaid decisions an date of service of finalization of provisional assessment is the relevant date for this purpose. 6. Learned AR has argued that the information regarding finalization was known to the appellant and they could have assessed the dome through the ICEGATE, however, it is also notice that revenue has been regularly serving the order of finalization of provisional assessment as can be seen from the letters dated 02.03.2018, 07.04.2018, 07.06.2018, 04.04.2018, 10.03.2017, 10.03.2017, 23.03.2017, 26.04.2017, 15.11.2017, 21.11.2017 and 21.11.2017 produced by the appellant." 4. Learned advocate Mr. C.B. Gupta for the appellant submitted that as per contents of the show-cause notice and the findings recorded at by the adjudicating authority, as per the report of the Superintendent of Customs dated 29.11.2016, the Bills of Entry were finally assessed between 07.10.2015 and 20.10.2015 and refund application is filed on 26.10.2016 and therefore, the same is time barred as refund application is filed beyond one year from the date of final assessment. 4.1 It was submitted that the department has uploaded the....

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....rder; (b) where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction; (c) where any duty is paid provisionally under section 18, the limitation of one year shall be computed from the date of adjustment of duty after the final assessment thereof or in case of re-assessment, from the date of such re-assessment." 6. On perusal of the above provisions of the Act, it is clear that once the provisional assessment is done and the assessee is entitled to the refund claim, then he has to make application within a period of one year under section 27 read with section 27(1B) of the Act. 7. It is pertinent to note that the adjudicating authority while considering the reply filed by the petitioner has observed in para 14.4 of the order dated 20.03.2017 while rejecting the refund application of the petitioner as under: "14.4 I have also gone through the defence submission dated 08.02.2017, additional submission dated 07.03.2017 and oral submission made by them durin....