TaxTMI 
TaxTMI 
2023 (12) TMI 1363
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....ter') were carrying on the business of health, nutrition and beauty products and had imported inter-alia, dietary supplements by classifying it under Customs Tariff Heading (CTH) 21.06 and paid applicable duties of Customs. In an dispute regarding payment of additional duties of Customs (CVD) upon availing concessional duty applicable vide entry at Sl. No.10(i) of notification No.02/2011-Central Excise dated 01.03.2011, the respondent importerhad claimed concessional CVD of 5%forthe imported dietary supplements as "Ready to Eat Packaged Food". Disputing such a claim, the department had denied the benefit of concessional CVD by initiating show cause proceedings demanding merit rate of CVD at 10%/12%, in a separate litigation, which had attained finality at the level of appellate proceedings held before the Commissioner of Customs (Appeals). As the respondent importer had initially paid the higher amount of CVD at merit rate, they had filed refund application with the department claiming refund of CVD paid over and above the concessional rate of CVD. Upon finalisation of provisional assessments in respect of such imports, the department had paid refunds to the respondent importer by ....
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....rter under a centralised DOV registration No.006769 dated 13.06.2011 for ascertaining the valuation of the imported goods in terms of the provisions of Section 14 of the Customs Act, 1962 read with the rules made thereunder, by assessing the imported goods under provisional assessment of duty under Section 18 ibid. Further, the importer was also asked to submit various documents along with requisite details in terms of the questionnaire prescribed by CBEC circular No.11/2011-Cus. dated 23.02.2011. In reply to the said questionnaire the importer had submitted vide their letter dated 27.06.2011, a number of documents including Trademark and Marketing Agreement; Management Service Agreement; Purchase, Warehouse and Distribution agreement dated 15.02.2011 and stated that one of the non-resident director in the importer's company is also an executive in the supplier's company. After examining the documents submitted by the importer, the Deputy Commissioner of Customs, GATT Cell, Mumbai vide Order-in-Original No. 630/DC/SVB/AK/2012-13 dated 13.09.2012 (SVB Order), had determined that the transactions between the importer and the supplier M/s. Aloe Vera of America Inc. USA are related in ....
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....so reveal that in import of dietary supplements classified under CTH 2106 9099, the importers have claimed the benefit of concessional additional duties of customs (CVD) under Sl. No.10(i) notification No.02/2011-Central Excise dated 01.03.2011 applicable to "Ready to eat packaged food". The Department interpreted that dietary supplements cannot be considered as food and does not fall in the category of ready to eat packaged food, thus initiated SIIB investigation which culminated into issue of show cause proceedings vide SCN dated 28.08.2012, which was adjudicated by an order dated 28.03.2013, denying the benefit of exemption vide Sl. No.10(i) of notification No.02/2011-C.E. dated 01.03.2011. On the above basis, an Order-in-assessment dated 29.03.2013 was issued denying the concessional CVD in the aforesaid notification. Being aggrieved with the both the above orders, the importer had filed an appeal before the Commissioner of Customs (Appeals), who after examining the legal provisions under the Food Safety and Standards Act, 2006, had passed an order holding that the imported goods of description 'dietary supplements' is "food" in terms of the definition given under clause (i) of....
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....It is also stated by him that in respect of 2 B/Es viz., 9338974 & 9338978 both dated 18.02.2013 due to some technical problem in the system, reassessment could not be completed. Later, the next AC, Group-I vide letter dated 27.03.2018 had re-assessed finally this remaining 2 B/Es viz., 9338974 & 9338978 both dated 18.02.2013. On the basis of the above facts, and after examining requisite compliances under Section 27 ibid, the DC, CRARS section had sanctioned the refund of Rs.3,83,54,263/- and Rs. 50,97,056/- vide order dated 05.10.2016 and order dated 30.05.2018, respectively. The aforesaid refund was also received by the importer on 17.10.2016 and 05.06.2018, respectively. As the importer's claim for interest on delayed payment of refund had not been considered in the aforesaid 2 orders, they had taken up the matter with AC, CRARS section and subsequently in appeal before the Commissioner of Customs (Appeals), whose order has been appealed by the department in the present appeal before us. 3.1 Learned Advocate appearing for the appellants had submitted that the respondent importer's claim for interest on delayed refund is governed under Section 27A of the Customs Act, 1962 and....
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....d 28.03.2013 & 29.03.2013 to the lower authority for examining the issues, as these are not examined earlier. 8. 15.01.2015 Order passed by original authority i.e., Assistant Commissioner of Customs, Appraising Group-I for assessment of goods, holding that the imported goods are 'ready to eat packaged food' and are thus eligible for concessional CVD. 9. 08.04.2014 Respondent importer submitted refund claim of excess CVD paid for imports undertaken in period-II (16 B/Es) and period-III (14 B/Es) amounting to Rs.4,34,51,319/- (though the refund application mentioned 31 B/Es, as 1 B/E is pertaining to JNCH, it does not form part of the present proceedings) 10. 25.03.2016 & 30.03.2016 Respondent importer re-submitted documents pertaining to the refund claim as the Department could not trace the original file 11. 02.05.2016 Representation for re-assessment of B/Es in accordance with the principle laid down by the Commissioner of Customs (Appeals) in his order dt.09.10.2014 12. 17.06.2014 Respondent importer requested the Assessing Group for finalisation of 30 B/Es. 13. 05.10.2016 Refund of Rs.3,83,54,263/- in respect of 28 B/Es was s....
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....herefore, learned Advocate stated that the basis on which the Appellant department has filed their appeal is incorrect and thus it must be dismissed. 3.3 It is also submitted by the learned Advocate that the letters filed by the respondent in 2016 seeking "finalization" of assessments were letters requesting for reassessment to reflect the benefit of exemption notification No. 2/2011-C.E. He also stated that when the refund application was filed on 08.04.2014, all 30 B/Es concerned had already been finally assessed. The letters filed by the Respondent in 2016 merely sought the reassessment of the B/Es to reflect the benefit of exemption Notification No. 2/2001-C.E., so that refund is granted at the earliest. These letters cannot be relied upon to state that assessments were provisional when the refund application was filed. 3.4 He also stated that as evident from the Copies of the B/Es, the assessments were either final at the time of import itself, or were finalized on 10.05.2013. Once the B/Es are finalized, the same cannot be finalized again. Given the same, the Respondent's letters filed post filing of the refund application must merely be treated as letters seeking early....
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.... Vs. Motor Industries Co. Ltd. reported in 2010 (261) E.L.T. 668 (Tri.-Mumbai), the question of refund would arise only after the final assessment of these B/Es. The relevant date in the instant the matter was submitted by him in the format as given below: Period of import From 30.03.2012 to 18.02.2013 Finalisation of assessment in respect of 28 B/Es 01.08.2016 Date of sanction of refund in respect of 28 B/Es 05.10.2016 Finalisation of assessment in respect of 2 B/Es 27.03.2018 Date of sanction of refund in respect of 2 B/Es 30.05.2018 On the above basis, the learned AR submitted that the refunds were sanctioned within the period of 3 months from the date of final assessment as prescribed under Section 18(4) ibid. He further submitted that even if the date is to be reckoned under Section 27, the period of limitation for filing refund application is to be computed from the date of final assessment or re-assessment only under Section 27 (1B)(c) ibid. In this case, no refund application was filed after final assessment, but the refund was granted within 3 months from the date of final assessment as per the provisions of sub-section (2) and ....
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....ctually incorrect in allowing the claim of interest to be paid in respect of the delayed refunds, by applying the provisions of Section 27A ibid and on the basis of incorrect details. 7.1 Firstly, on the factual matrix of the case, we would like to refer the impugned order of the learned Commissioner of Customs (Appeals) in allowing the appeal filed by the importer in Order-in-Appeal No. MUMCUS-JSN-IMP-89/2019-20 dated 03.01.2020. The relevant portion of the said order dated 03.01.2020 is given below, for ease of reference: "7.4. Further, I observe that the refund in the instant case had arisen after the Commissioner (Appeals) vide OIA No.MUM-CUSTM-SMP-67-68/ 2014-15 dated 09.10.2014, had allowed the concessional notification benefits to the appellant. After the acceptance of the OIA on 19.11.2014, an Order-in-Original No. CAO/1213/AC/PK/2014-15 dated 15.01.2015 was also passed to settle the issue that concessional rate of CVD under the said notification must be extended to the goods dietary supplements as they are "ready to a packaged food". I find when the notification benefits were allowed by the appellate authority and further the issue was settled by passing an ord....
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.... the appellants do not fall in category of foods. The factual position concerning other two aspects - whether or not the said dietary supplements are in "ready to eat" condition and whether or not they are "packaged" - has not at all been examined. As a result, there are no findings and therefore no dispute concerning these two aspects in matters before me. 11. In view of the above, the goods described as "dietary supplements" are held to be food. The impugned orders are annulled and the adjudicating authority is directed to determine eligibility to notification benefit after necessary verification with regard to the twin issues discussed above." (Emphasis supplied) Hence, we find that the impugned order is factually incorrect in stating that notification benefits were allowed by the appellate authority. 7.3 Further, the issue of extending the concessional CVD of 5% under Sl. No.10(i) notification No.02/2011-Central Excise dated 01.03.2011 in respect of the imported dietary supplements, was passed by the original authority in terms of Section 17 of the Customs Act, 1962. The operative portion of the said order dated 15.01.2015 is extracted below: "ORDER ....
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....te, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty. Explanation: Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal, National Tax Tribunal or any court against an order of the Assistant Commissioner of Customs or Deputy Commissioner of Customs under sub-section (2) of section 27, the order passed by the Commissioner (Appeals), Appellate Tribunal, National Tax Tribunal or as the case may be, by the court shall be deemed to be an order passed under that sub-section for the purposes of this section. Section 27. Claim for refund of duty. - (1) Any person claiming refund of any duty or interest,- (a) paid by him; or (b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest: PROVIDED that where an application for refund has been made before the date on which the Finance Bill, 2011 ....
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....ll be credited to the Fund: PROVIDED that the amount of duty and interest, if any, paid on such duty as determined by the Assistant Commissioner of Customs or Deputy Commissioner of Customs-under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) the duty and interest, if any, paid on such duty paid by the importer, or the exporter, as the case may be if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and interest, if any, paid on such duty on imports made by an individual for his personal use; (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75; (f) the duty and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, spe....
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....l provisions of Section 27(1) ibid, deal with the claim for refund of duty and interest. As provided therein, refund of duty and interest can be claimed either by a person who has paid the duty in pursuance to an order of assessment or a person who has borne the duty. In the present case, since the importer respondent has paid the duty and claimed the refund of excess duty paid, he is required to file a refund application along with such documentary or other evidence including the documents evidencing the grounds on which refund has been claimed. The form and manner of refund application which is required to be filed has been prescribed in the Customs Refund Application (Form) Regulations, 1995. It has also been made abundantly clear in these legal provisions by a specific 'Explanation' clause that for the purposes of payment of interest under section 27A ibid, the refund application shall be deemed to have been received only on the date on which a complete application is filed by the applicant. 8.3 In the context of the above legal provisions, we proceed examine the factual matrix of the case for deciding whether interest is payable or not, in the case before us. Documents plac....
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....nd the final assessment order dated 15.01.2015 granting the benefit of concessional CVD itself has been issued subsequent to such filing of refund claim. In this regard we find from the notarized additional documents submitted by the respondent importer, which inter-alia contained the "Application for Refund of Duty/Interest". Part 'A' is of three pages. The scanned copy of the said application for refund is placed below extract. 8.5 From the plain reading of the above application, it transpires that even though for Sr. No. 1, the details have been provided as List-A, containing Bills of Entry and similarly for Sr. No.2 the Duty Deposit reference has been given as List-B. The amount of refund claim is indicated as Rs.4,46,48,538/- on the grounds that it is (1) by mistake of law; (2) contravention of Article 265 of the Constitution; (3) in accordance with Section 72 of the Contract Act; and (4) in accordance with Settled Law. Even though by calculation of the total amount of actual refunds sanctioned later for Rs.3,83,54,263/- (for 28 B/Es) and Rs.50,97,056/- (for 2 B/Es), and the one B/E relating to JNCH, Nhava Sheva which is under different Customs Jurisdiction for Rs.11,97,219....
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.... on the ground that it is not 'goods' within the meaning of Central Excise Act, 1944 is not a case of unconstitutional levy. The relevant paragraphs of the said judgment is extracted and given below: "4. The respondent issued to the appellant a show cause notice dated January 6, 1992 calling upon it to show cause why the amount of refund claimed by the appellant should not be credited to the consumer welfare fund in terms of Section 11B read with Section 12C. The appellant filed a reply to the show cause notice. The respondent, however, by order dated March 25, 1994 directed that the sum of Rs. 5,41,499/- be credited to the consumer welfare fund under Section 12C of the Act. This order was challenged by the appellant by filing a writ petition in the High Court which was dismissed by the judgment and order under appeal. 5. The questions involved in the appeal are no more res integra after the decision of nine judges' bench in Mafatlal Industries Ltd. & Ors. v. Union of lndia & Ors., [(1997) 5 SCC 536]. Learned Counsel for the appellant has, however, contended that the present case was outside the provisions of the Act as the RF solution was not 'goods' with....
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....5, by finally assessing the 28 B/Es on 27.03.2018. Further, the angle of unjust enrichment in respect of such refund claims was also examined after the respondent importer submitted additional documents on 30.08.2016. Similarly, in the case of other 2 B/Es, the additional documents were submitted on 27.03.2018 and on 27.04.2018 for completing the submission of proper refund claim. Thus, from these factual evidence also it can be concluded that there is no case of delayed payment of refunds in this case. 8.7 We further find that the refund order dated 05.10.2016 sanctioning refund in respect of 28 B/Es out of the total 30 B/Es, has mentioned that the agreements entered into between the supplier abroad & importer respondent and that between the importer & it's distributor, sale invoices of the subject goods were submitted on 30.08.2016. Upon analysis of such documents submitted by the importer respondent, the original authority had come to the conclusion that the burden of differential CVD paid by the importer respondent was not passed on to any other person, and thus the refund of duty paid in excess, are eligible to be paid to the importer respondent. These specific facts in res....
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....icate has explained that the Suggested Retail Price (SRP) provided by AVA for its products in actuality is the Maximum Retail Price (MRP) which is paid by the end user. The Memo covers items imported vide subject B/Es. 19. Likewise, the agreement dated 25/03/2011 between the importer M/s Forever Living Imports (India) Pvt. Ltd. (FLII) and Distributor M/s Forever Living Trading (India) Pvt. Ltd. (FLTI) states that the prices for the FLP products will be agreed to between parties from time to time. xx xx xx xx xx 24. From the above discussion and facts, I find that the importer has not passed on the burden of the extra CVD to others and therefore fulfills the requirements of principles of unjust enrichment and that if refund is granted, will not be enriched unjustly. 25. I find therefore the party has met all requirements of section 27 of Customs Act and seems to be eligible for refund as claimed by them." (Emphasis Supplied) 8.8 Similarly, we also find that the refund order dated 30.05.2018 sanctioning refund in respect of remaining 2 B/Es out of the total 30 B/Es, have mentioned the following specific facts in respect of the refund ap....
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....lations 1995." 8.9 In view of the above facts, we are of the considered view that in terms of the provisions of Section 27 ibid, read with Customs Refund Application (Form) Regulations, 1995 framed thereunder, the complete refund application was submitted by the Respondent importer only after all the requisite documents evidencing the payment of differential duty, relevant agreements and the sale invoices for the products were produced before the Customs authorities, to demonstrate that the burden of differential duty paid by the importer respondent was not passed on to any other person. Hence, on the factual matrix of the case, it cannot be considered that the refund application in the present case was submitted on 08.04.2014, as claimed by the importer respondent. 8.10 Thus we also do not find it necessary to go into the details of other points put forth by Revenue and learned Advocate for discussing the issue of whether payment of interest on delayed refund arises in this case and for coming to the conclusion about the date of receipt of complete refund application. 9.1 The extract of Section 17 & 18 ibid, are as follows: Section 17. Assessment of duty. - (1) A....
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....ithout prejudice to the provisions of section 46 and section 50,- (a) where the importer or exporter is unable to make self-assessment under sub-section (1) of section 17 and makes a request in writing to the proper officer for assessment; or (b) where the proper officer deems it necessary to subject any imported goods or export goods to any chemical or other test; or (c) where the importer or exporter has produced all the necessary documents and furnished full information but the proper officer deems it necessary to make further enquiry; or (d) where necessary documents have not been produced or 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. (1A) Where, pursuant to the provisional assessment under sub-section (1), if any document....
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....of such duty and interest, if any, paid on such duty to any other person; (b) the duty and interest, if any, paid on such duty on imports made by an individual for his personal use; (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75. 9.2 From the perusal of above legal provisions of the Customs Act, 1962, it transpires that Section 17 of the Customs Act, 1962 provides that an importer entering any imported goods under section 46 by filing a Bill of Entry (B/E) shall self-assess the customs duty payable on imported goods. Thus, the provisions makes it clear that under self-assessment, it is the importer who will ensure that he declares the correct classification, applicable rate of duty, value, benefit of exemption notifications claimed, if any, etc. in respect of the imported goods while presenting Bill of Entry. The declaration filed by the importer may be verified on the basis of risk assessment by the Risk Ma....
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....rk, royalties and licence fees, costs of transportation to the place of importation, insurance, loading, unloading and handling charges to the extent and in the manner specified in the rules made in this behalf. CBIC had prescribed certain procedure for determining the value of imported goods which involve related party transactions and for finalization of provisional assessment in such cases vide Circular No.11/2001-Customs, dated 23.2.2001, as amended by Circular No. 5/2016-Customs 09.02.2016. In terms of the such procedure, in respect of imports involving related party transactions, the importer is required to fill a questionnaire and furnish a list of documents so that it can be ascertained after due examination, whether the said case requires investigation by Special Valuation Branch (SVB) or not. If the import transaction requires investigation to be conducted by SVB, then all the import transactions of such importer, irrespective of the port of import shall be decided by the SVB branch of the concerned Customs House, where they registered for such detailed valuation by SVB. Earlier there was a provision of taking Extra Duty Deposit (EDD) @ 1% of declared assessable value for....
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.... revenue deposit/EDD of Rs. 68,24,902/- paid by the importers and ordering refund of the balance amount of Rs.40,62,013/- to the importers by cancelling the 68 Provisional Duty (PD) bonds executed by them vide Order-in-Original dated 13.08.2013. The relevant B/Es in which the provisional assessments were claimed to have been finalized by the importer respondent carry only an endorsement to the effect that 'B/Entry assessed finally as per SVB Order No.630/DC/SVB/AK/2012-13 Dt.13.09.2012 vide File No.5/9/-98/Gatt/2011-GVC duly signed by the A.O and A.C. of Group-I'. The above documents and the Order-inOriginal No. 501/2013-14/GR.I/AC/MPS dated 13.08.2013 also indicate that the provisional assessments were finalized to the limited extent of finalising the valuation of goods in terms of the SVB order indicated above. In the said order, it is made very clear that the decision has been taken on the basis of solemn affirmation and written submission made by the importer and any change, technical error/omission should be brought to the notice of the department without delay by the importer respondent. Thus, the SVB order is limited to the extent of finalizing the assessments in respect of ....
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....lement is covered under the scope of 'Food', and the order passed by the original authority had also limited its finding to this extent, the subsequent order passed by the Commissioner of Customs (Appeals) had clearly examined the scope of exemption for considering whether the imported dietary supplement is eligible for concession CVD or not, and had given its findings on one particular issue and remanded the case to the original authority for deciding on the other two issues. Thus, we are of the considered view that the stand taken by the learned Advocate that there was no dispute in respect of the twin issues determined by original authority, and the dispute is limited to only the point of determining whether the imported dietary supplement is a food or not, cannot be accepted. It is also a fact that the importer respondent did not object to the order dated passed by the Commissioner of Customs (Appeals) by filing an appeal, on the above stand. Hence the same cannot be agitated at this stage. For the same reason, the finding given in the impugned order that the dispute in respect of extending concessional benefit of CVD was finalized by the Commissioner of Customs (Appeals) in hi....
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....und only after due verification of documents. 11. The importer preferred an appeal before the Appellate Authority questioning the order passed by the Original Authority. The Appellate Authority having verified the documents and also having given its due consideration to the reasons assigned by the Original Authority concurred and affirmed the reasons assigned by the Original Authority. The Appellate Authority was also of the view that the refund is sanctioned well within the time of three months from the date of receipt of last document from the importer and therefore, question of awarding interest will not arise. 12. On perusal of the order passed by the CESTAT however, we would find that the Tribunal has placed reliance on the judgments of the Apex Court and by plainly relying on the judgments has come to the conclusion that if the amount is not refunded within three months from the date of application, the department is bound to pay interest in terms of Section 27A of the Act, 1962. On meticulous examination of the reasons and conclusions arrived at by the Tribunal, we would find that the Tribunal has not examined the findings arrived at by the Original Authori....
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....also taken a similar view with respect to reckoning the date of receipt of the refund claim only on submission of all documents, making the refund claim complete. The relevant para of the said order is extracted below: "3. After considering the submissions from both sides, I find that in the original refund application dated 13-9-94, there was a mention regarding submission of Chartered Accountant's Certificate. However, Modvat Certificate issued from Range was not submitted at the time of filing of the original Refund Application, but was submitted along with the letter dated 26-7-05/9-8-05. Learned Counsel appearing for the appellant states that even though the Refund Claim was originally rejected as time-barred, in view of the decision of the Honorable High Court of Rajasthan in the case of J.K. Cement Works v. Asstt. Commissioner of Central Excise & Customs - 2004 (170) E.L.T. 4 (Raj.), the appeal against which has been dismissed by the Apex Court, vide 2005 (179) E.L.T. A150, interest is payable from the date of filing the refund claim and not from the date of Order of the Tribunal allowing the refund on 5-5-2000. 3.1 In view of the fact that all the necessar....
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....efund Caim. Individual Refund Claims are submitted in Anne C. In the Application, Serial No 9(g) requires us to submit Documents for establishing our eligibility to recere refund in terms of the proviso to sub-section (b) and sub-section (2) & (2) of Section of the Customs Act, 1962. In this regard, we are submitting Annexure B, which is out Statement of Facts & Written Submissions with appropriate Exhibits 27 Please accept the Application for Refund of Duty along with Annexures & Exhibits as detailed out in the Index annexed to the Application and acknowledge the copy of this letter as a token of receipt of the same Thanking you, Sincerely your Rohil Jayakar Manager-Imports Regiered Office 501, Sharyn Cur Seb Fine Aben Li Papa, Opp Tel-41 22 60se Fa CRARS RECEIPT not receipt for comple of the Refund Application 814114 Moteipt Clock Fin. by Son, 3. Gurnard Road and (W), M-40005 22 66099305 CRARS RECEIPT This is not a receipt for completeness of the Refund Application 08/04/2014 Receipt Clerk (sd./) New Custom House, Mumbai-1 Document 2 APPLICATION FOR REFUND OF DUTY/INTEREST The Ass....