TaxTMI 
TaxTMI 
2026 (4) TMI 448
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....he digital cameras] According to the appellant, it was entitled to claim exemption from payment of basic customs duty on the import of digital cameras in terms of a Notification dated 01.05.2005 that was subsequently amended on 17.03.2012 [the Exemption Notification] The appellant claims that the benefit of the Exemption Notification was earlier granted to the appellant for the period from 17.03.2012 to 12.02.2014 but as an investigation was carried out by the Directorate of Revenue Intelligence on the imports of digital cameras, the department did not allow the appellant to claim the benefit of the Exemption Notification from February, 2014 onwards. When the department did not allow the appellant to claim exemption from payment of basic customs duty in terms of the Exemption Notification, the appellant submitted a letter requesting the department to provisionally assess the Bills of Entry filed for importing digital cameras. The Deputy Commissioner wrote a letter dated 14.03.2014 to the appellant stating that digital cameras were not eligible for exemption of customs duty, but if the appellant did not agree, it could intimate the department so that a speaking order could be passed....
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.... regard:- ⮚ Letter of payment of duty under protest (Annexure-2); ⮚ TR-6 Challan as evidence of payment of duty (Annexure-3); ⮚ Attested copy of the Audited balance sheet showing claims recoverable (Customs duty) for financial year 2014-15 (Annexure-4); ⮚ CA Certificate for unjust enrichment along with Co-relation certificate (Annexure-5); ⮚ Original Copy of the bills of entry (Annexure-6). 9. At the time of filing of earlier refund application on 16.03.2015, your good-self pointed out several deficiencies and sought for following documents namely Original Bills of entry, CA certificate and Co-relation certificate. It is submitted that we are filing the present application accompanied with Original Bills of entry, CA certificate along with Co-relation certificate as Annexures 6 and 5 respectively." 5. A speaking order has to be passed within a period of 15 days from the date of re-assessment of the Bills of Entry as contemplated under section 17(5) of the Customs Act. The appellant had made a request for passing speaking order on 18.03.2014 but as it was not passed despite reminders submitte....
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....avour of the party for eligibility of the said exemption Notification. They submitted refund application along with Bills of entries filed between the period December 2014 to February 2015, CA Certificate, Co-relation sheet, Correspondence with department and requested that refund application be allowed to be filed and be adjudged on the merits of the case and a formal order be passed. I observe that the relevant Bills of entry were finally assessed by the concerned assessing Group and benefit of Notification No. 25/2005 Customs dated 01.03.2005 was denied and thus there is no excess payment, as the exemption under Notification 25/2005- Cus dated 01.03.2005 was denied to the party by the Deputy Commissioner of Customs, Group-VA, and therefore, if the party has any different view they should have approached the appellate authorities for getting orders for the re-assessment of the said bills of entry. Accordingly, memorandum dated 15.09.15 and 07.01.2016 were issued to the party and an opportunity for personal hearing was also granted to the party In response to the said memorandum, the party appeared for personal hearing on 18.01.2016 and submitted a written submission. ....
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....llant by filing an appeal before the Commissioner (Appeals). 11. The appeal filed by the appellant against the speaking order dated 12.05.2016 was dismissed by the Commissioner (Appeals) by order dated 06.06.2019 after placing reliance on the decision of the Tribunal rendered on 19.12.2017 in the matter of the appellant wherein exemption claimed from payment of basic customs duty on digital cameras was not accepted. The relevant portions of the order dated 06.06.2019 passed by the Commissioner (Appeals) are reproduced below: "2.1 The Appellant had filed 626 Bills of Entry during the period from 13th February, 2014 to 7th March, 2015 for clearance of 'NIKON' brand "Digital Still Image Video Cameras" under CTH 85258020 with duty rates 0% +12%+0%+0% vide Notification No. 25/2005-Cus dated 01.03.2005 (hereinafter referred to as "Notification No. 25/2005-Cus") Sr. No. 13 as amended by Notification No. 15/2012-Cus. However, while finalizing the assessment of the impugned Bills of Entry, the Department assessed the duty rates as 10%+12%+2%+1%+0% without granting the exemption benefit of 10% Basic Customs Duty (BCD). The Appellant cleared the goods on payment of differe....
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....e capacity, such cameras will not be entitled to the benefit of notification. It is well settled that a person who claims exemption or concession, has to establish that he is entitled to that exemption or that concession. In the present case, as discussed above, the impugned goods do not fulfil all the conditions specified in the notification and hence it is inevitable that the benefit of notification is denied to these goods." ***** 5.9 Therefore, the impugned Order is legally correct in holding that the impugned 'Digital Still Image Video Cameras' imported by the Appellant are not entitled to BCD exemption as Notification No. 25/2005-Cus., as amended. Therefore, re-assessment by the Department by denying the exemption benefit is in accordance with the said Notification." s (emphasis supplied) 12. The appeal filed by the appellant against the order dated 12.02.2016 rejecting the refund application was also dismissed by the Commissioner (Appeals) by order dated 14.06.2019. The relevant portions of the said order dated 14.06.2019 are reproduced below: "2. The facts of the case are that the appellant filed a refund claim of Rs. 7,32,77,496/- against t....
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....2218 of 2019 before this Tribunal against the order dated 06.06.2019 passed by the Commissioner (Appeals) in connection with the speaking order. The Tribunal, by an interim order dated 08.03.2022, did not agree with the decision earlier rendered by the Tribunal on 19.12.2017 and, therefore, referred the matter to a Larger Bench of the Tribunal to decide the following two issues: (i) Whether the digital cameras imported by the appellant would be entitled to basic customs duty exemption under the Exemption Notification, as amended by the Notification dated 17.03.2012, whereby an 'Explanation' was added; and (ii) Whether the Tribunal, in the Final Order dated 19.12.2017, has correctly interpreted the scope of 'Explanation'. 14. The Larger Bench of the Tribunal, while answering the reference by order dated 14.06.2024, held that the digital cameras imported by the appellant would be entitled to exemption from payment of basic customs duty in terms of the Exemption Notification. The relevant portions of the interim order dated 14.06.2024 passed by the Larger Bench of the Tribunal are reproduced below: "34. *****. In the present case, there is no ambiguity in....
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....imited is aggrieved by the order dated 06.06.2019 passed by the Commissioner of Customs (Appeals) by which the appeal that was filed by it to assail the order dated 13.05.2016 passed by the Assistant Commissioner of Customs, Group VA has been dismissed. The Assistant Commissioner had held that NIKON brand "digital still image video cameras" imported by the appellant are not entitled to Basic Customs Duty exemption under the notification dated 01.03.2005, as amended by the notification dated 17.03.2012. 2. When the matter was heard by this bench, a detailed order dated 08.03.2024 was passed. Paragraphs 64 to 65 of the order are reproduced below: "64. The view that we have taken, namely, that "digital still image video cameras" imported by the appellant would be entitled to BCD exemption under the notification dated 01.03.2005, as amended on 17.03.2012, is contrary to the view taken by the Division Bench of the Tribunal on 19.12.2017 in the earlier round of proceedings arising out of the show cause notice dated 09.08.2014. 65. It would, therefore, be appropriate to refer the matter to the President of the Tribunal for constituting a larger bench of the Trib....
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....ion was initiated by the Directorate of Revenue Intelligence [DRI] regarding the imports of digital cameras at concessional rate of duty which resulted into issuance of show cause notice dated 19.08.2014 proposing to deny benefits of the exemption which had been claimed at the time of import of the digital cameras during the period 16.03.2012- 15.02.2014. The said matter was decided by Supreme Court in Civil Appeal No. 1832 of 2018 by order dated 09.03.2021. The Supreme Court set aside the show cause notice on the ground of jurisdiction. The said order was challenged by the department by filing a Review Petition. The Supreme Court, by Final Order dated 07.11.2024, remanded the matter back to the Tribunal for deciding the issue on merits for the normal period of limitation. 12.03.2014 Due to the DRI investigation, department did not allow the appellant to claim benefit of exemption on the digital cameras imported by it from February 2014 onwards. The appellant, therefore, submitted a letter requesting the department to provisionally assess the Bills of Entry filed for importing digital cameras. 14.03.2014 (Benefit of the Exemption Notification) The Deputy Commissio....
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.... order) The Writ Petition filed by the appellant was allowed by the Delhi High Court by order dated 08.02.2016. The Delhi High Court directed the Deputy Commissioner to pass a speaking order under section 17(5) of the Customs Act within 15 days. 12.02.2016 (received on 03.10.2016) (order-in-original rejecting refund application) The Assistant Commissioner passed an order dated 12.02.2016 rejecting the refund applications filed by the appellant on the ground of absence of re-assessed impugned Bills of Entry. The Assistant Commissioner relied upon the judgment of the Supreme Court in Priya Blue. The appellant challenged the order rejecting the refund applications before the Commissioner (Appeals). 09.03.2016 31.03.2016 04.05.2016 (Reminder letters for speaking order post writ order) Despite the direction by the Delhi High Court, no speaking order was passed within 15 days from the date of decision. The appellant sent repeated reminders to the department requesting for passing of speaking order pursuant to the directions of the Delhi High Court. 12.05.2016 (Speaking order) The Assistant Commissioner passed the speaking order on 12.05.2016 denying the benefit of....
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.... benefit of the Exemption Notification to the appellant following the Larger Bench order and set aside the order dated 06.06.2019 with consequential relief. The Bills of entry covered in the present appeal are part of this order of the Tribunal wherein the issue on merits has been decided in favour of the appellant. January, 2025 The department has challenged the Order dated 09.09.2024 of the Tribunal in Civil Appeal No. 3541 of 2025 before the Supreme Court. However, no stay has been granted and notice has been issued on 24.02.2025. 09.04.2025 Post remand from the Supreme Court by order dated 07.11.2024, the Tribunal heard the issue on merits and relying upon the order dated 09.09.2024, allowed the benefit of the Exemption Notification. 19. Shri V. Lakshmikumaran, learned counsel for the appellant assisted by Ms. Jyoti Pal, Ms. Anjali Gupta and Shri Ashwani Bhatia, made the following submissions: (i) The reason given by the Commissioner (Appeals) in the impugned order dated 14.06.2019 for rejection of refund claim that the issue stood concluded by a decision dated 19.12.2017 of the Tribunal rendered in the matter of the appellant no longer subsists in vi....
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....f Entry which were covered and decided in the speaking order dated 12.05.2016, by which the claim of the appellant for availing benefit of the Exemption Notification was initially denied. However, the Larger Bench of the Tribunal decided the reference in favour of the appellant and the Division Bench of the Tribunal passed in the order dated 09.09.2024 in terms of the reference answered by the Larger Bench. A natural corollary of the above order would be to grant refund of the duty paid by the appellant at the time of filing of disputed Bills of Entry, along with necessary interest. This has to be regarded as consequential relief; (viii) It is a well-settled legal position that "an appeal is in continuation of assessment proceedings" by virtue of which in case of passing of an assessment order (in this case, the impugned Bills of Entry read with the speaking order), the assessee has the statutory right to challenge it before higher authorities, namely the Commissioner (Appeals) and subsequently the Tribunal. The appellate process is not a fresh or independent proceeding. It is treated as an extension of the original assessment. This principle ensures that the final outcome....
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.... squarely cover the present matter; (ii) The statue provides for filing for refund application under section 27 of the Customs Act but it does not mean the same is entertainable/maintainable before the assessment order is challenged and modified subsequently by the quasi-judicial authority (the proper officer). Thus, the refund application filed at that time did not carry any authority (no cause of action) in the absence of any modified order passed after the assessment order/assessed Bills of Entry. Thus, the refund application was not maintainable at that time as per ration laid down by the Supreme Court in ITC. The cause of action had not arisen to the appellant on 21.07.2015 when the refund application was filed and, therefore, the refund application was rightly rejected. In support of this contention, learned special counsel placed reliance upon the judgment of the Supreme Court in Dena Snuff (P) Ltd. vs. Commissioner of Central Excise, Chandigarh [2003 (157) E.L.T. 500 (SC)]; (iii) The Tribunal, in its order dated 09.09.2024, relying on the Larger Bench decision of the Tribunal passed an order in favour of the appellant and they had the authority as per law ....
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....l on 09.09.2024 and not before that. Any refund allowed without applying the provisions of the section 27(1B)(b) of the Customs Act will be bad in law. 21. The submissions advanced by the learned counsel for the appellant and the learned special counsel appearing for the department have been considered. 22. The appellant claims that it was entitled to claim exemption from payment of basic customs duty on the import of digital cameras in terms of the Exemption Notification, but as this was denied to the appellant, the appellant requested the department to provisionally assess the Bills of Entry. The Deputy Commissioner, however, by a letter dated 14.03.2014 informed the appellant that the digital cameras imported by the appellant were not eligible for exemption of customs duty and if the appellant did not agree it could intimate the department so that a speaking order could be passed. In response to this letter, the appellant requested the department to pass a speaking order but at the same time it paid basic customs duty under protest for future Bills of Entry. As no speaking order was passed, the appellant filed refund application on 21.07.2015 claiming refund of the duty am....
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.... (Appeals) had decided the appeal filed by the appellant against the rejection of the refund application for the reason that the Tribunal, by an order dated 19.12.2017, in the matter of the appellant, had denied exemption to the appellant from payment of basic customs duty in terms of the Exemption Notification and, therefore, the question of refund did not arise. This order dated 19.12.2017 no longer lays down good law as a Larger Bench of the Tribunal, by an order dated 14.06.2024, held that digital cameras imported by the appellant would be eligible for exemption from basic customs duty under the Exemption Notification. 28. The contention of the learned counsel for the appellant is that once the Tribunal by order dated 09.09.2024 allowed the benefit of the Exemption Notification to digital cameras, the order of the Tribunal read with the impugned Bills of Entry would tantamount to re-assessment of the Bills of Entry and, therefore, the reason assigned by the Assistant Commissioner in the order dated 12.02.2016 for rejecting the refund application also does not survive. Learned counsel also submitted that once the Larger Bench of the Tribunal held that the appellant is entitle....
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....he application for refund was not maintainable. However, the Supreme Court on 28.08.2003 in the matter of the appellant own case, decided that the appellant was right all along and that the duty was leviable under tariff sub-heading 2404 60. It is in this context that the Supreme Court in Dena Snuff observed that the cause of action to the appellant would arise only after the dispute regarding classification list had been settled by the Supreme Court on 28.08.2003. The observation of the Supreme Court in Dena Snuff are: "5. As far as the first submission is concerned, we are of the view that the Tribunal's appreciation of the relevant paragraph in Mafatlal Industries (supra) was correct. The "cause of action" of the appellant would arise only after the final dispute regarding the classification list had been settled by this Court. That was done as recently as on 28-8-2003. The application for refund by the appellant was therefore premature. We have noted the proviso to sub-section (1) of Section 11(B) which says that the period of limitation of one year prescribed under sub-section (1) will not apply in case duties are paid under protest. The question then is from which da....