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Judgment
Heard Shri Shankargouda Patil, Learned Advocate appearing for the appellant and Shri S. Balakumar, Learned Departmental Representative appearing for the Revenue.
Brief facts, as could be gathered from the Order-in-Original, inter alia, are that the appellant imported certain goods from its foreign suppliers, which was referred to the Special Valuation Branch (SVB) to ascertain the correctness of the valuation; that the Deputy Commissioner of Customs, SVB, Chennai passed Order-in-Original No. 28759/2014 dated 19.08.2014, accepting the declared value of the imported goods; that he had also ordered for finalization of the provisional assessment, based on which the provisional assessments in respect of 56 out of 58 Bills-of-Entry were finalized; that thereafter, the appellant had filed an application dated 27.07.2018 for refund of the Extra Duty Deposit ('EDD' for short), which was paid for the imports during investigation when the Bills-of-Entry in question were provisionally assessed, etc.
The Adjudicating Authority vide Order-in-Original No. 69754/2019 dated 15.05.2019 sanctioned a partial amount of Rs.31,22,770/- as against the appellant's claim for Rs.47,68,875/-, observing that the appellant/claimant had not furnished any evidence for payment of EDD with respect to 16 Bills-of-Entry (serial numbers 43 to 58 of the Bills-of-Entry tabulated by him in the Order-in-Original). Accordingly, he denied the refund to the extent of Rs.16,39,900/-. On appeal before the Commissioner of Customs (Appeals), the First Appellate Authority also rejected the appellant's claim by observing that the only requirement to process the EDD refund claim was submission of proof of payment of EDD and finally assessed Bills-of-Entry. Aggrieved, the present appeal has been field before this forum.
I have considered the rival contentions and gone through the documents placed on record.
5.1 The observations of the Adjudicating Authority make it clear that 56 out of 58 Bills-of-Entry were finalized. It is the settled position of law that EDD is made pending investigation by the SVB, for the Bills-of-Entry which are provisionally assessed. Admittedly, most of the deposits/EDDs were made between 2011 and 2013, as could be seen from the table at page 1 paragraph 1 of the Order-in-Original dated 15.05.2019 containing the Challan Numbers as well as the date of the Challans reflecting the deposit. The obvious and the only possible conclusion is that the EDDs were made, following which the final assessments on the various Bills-of-Entry came to be passed. It is also the settled position of law that as regards EDD is concerned, the same is not a Duty and hence, provisions of Section 27 of the Customs Act, 1962 are not applicable.
5.2 When the final assessments of the 56 Bills-of-Entry were concluded, the Revenue did not raise any issue with regard to the non-payment of EDD while the matter was under investigation by the SVB. It is worth reiterating that as on the date of final assessment, the appellant had made EDD through challans of even date as reflected in the table at paragraph 1 of the Order-in-Original dated 15.05.2019. However, when it came to the refund, to say that no proof of such deposit was made available, appears to be far-fetched and cannot be accepted.
The law is well settled, as held by various judicial fora including the Hon'ble jurisdictional High Court that refund of EDD should be made automatically upon the conclusion of final assessment without waiting for any application and hence, the denial of refund for want of challans which were not questioned while finalizing the assessment is no ground to deny. The Adjudicating Authority, having recorded the Challan numbers and dates of deposits in the table prepared by him at paragraph 1 of the Order-in-Original, cannot dispute the same when it came to refunding of the same. The appellant should get its due, with interest, in so far as 56 Bills-of-Entry are concerned. Admittedly, there were 58 Bills-of-Entry whereas only 56 Bills-of-Entry appear to have been finalized. This has not been specifically challenged by the assessee.
In the case on hand, the refund has been denied on the grounds that the RD challans have not been furnished as evidence for the payment of EDD with respect to 16 Bills-of-Entry (serial numbers 43 to 58 of the table at paragraph 1, page 4 of the impugned Order-in-Appeal) and for this reason alone, they were not considered for sanctioning refund. It is also on record that the appellant had submitted an indemnity bond for its above lapse and in any case, it is not the Revenue's case that no payments of EDD in so far as the 16 Bills-of-Entry are concerned, were ever made. The C.B.E.C. has issued Circulars/Notifications for guidance of the Officers by prescribing documents that may be considered for granting refund. If the appellant offers indemnity bond with the support of a Chartered Accountant Certificate, then that could also be considered as a valid document while processing refund.
In view of the above, I am of the opinion that the issue in so far as the 16 Bills-of-Entry are concerned, requires a relook by the Adjudicating Authority, who shall afford reasonable opportunities to the appellant to offer all such supporting documentary evidences as may be prescribed under various C.B.E.C. Circulars/Notifications, which are also binding on the Adjudicating Authority, and then, pass an appropriate order in accordance with law.
The appeal stands allowed by way of remand, with the directions, as indicated above.
(Order pronounced in the open court on 17.08.2021)