COMMISSIONER OF CUSTOMS, MANGALORE v. M.K. AGROTECH PVT LTD.

High Court in the case of M/s. Tanfac Industries Ltd. V. Asst. Commissioner of Customs – 2009 (240) E.L.T. 341 held that debit in duty entitlement scrips is as good as payment of Customs duty i.e. in lieu of payment of customs duty in cash. Similar view was upheld in the case of CC, Jamnagar V. Reliance Industries (in Appeal No. C/186/2010-DB) Tri.- Ahmedabad wherein the Hon’ble Tribunal held that utilization of DEPB scrip is as good as cash payment and should be treated on par with duty paid goods. He further submits that on the same analogy the Circular 6/2008, 27/2010 and 10/2012 issued in the context of refund under Section 27 of the Customs Act of special additional duty (as per Notification 102/2007-Cs.) directing recredit of duty entitlement scrips in case of refunds has been held as void and struck down by the Delhi High in Allen Diesels India Pvt. Ltd. V. Union of India – 2016 (334) E.L.T. 624 (Del.). Subsequent to this decision many Tribunals have followed the decision of the Delhi High Court in the following cases and directed the refund to be paid in cash: - 9 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W a. Molex India Pvt. Ltd. V. CC, Bangalore Order No. 20757 to 20776/2018 dt. 30.05.2018-Tribunal Bangalore b. Arihant Tiles & Marbles Pvt. Ltd. V. CC Mundra in Order No. A/11317- 11318/2018 dt. 15.06.2018-Tribunal Ahmedabad c. CC (Appeals) V. Proflex Systems Order No. A/12796 – 12803/2017 dt. 27.09.2017

#6. In view of my discussion above, I am of the considered view that the impugned order is not sustainable in law and therefore, the same is set aside by allowing the appeal of the appellant and the matter is remanded to the original authority only for the purpose of verification of the documents and sanctioning of the refund.”

#5. It may be stated here that, the parties to these appeals in this judgment shall be referred as appellant for Customs and respondent for M/s Agrotech, wherever reference is made in the body of the judgment. Submissions of Sri. Jeevan J.Neeralgi, counsel for the appellant in CSTA No.12/2020: learned

#6. Sri. Jeevan J.Neeralgi, Advocate of the Customs in CSTA 12/2020 submits that, the appellant has challenged the Final Order No.20449/2019 dated 31.05.2019 passed - 10 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W by the Tribunal allowing the refund claim preferred by the respondent and remitting the matter to the Adjudicating Authority limited purpose of verification and quantification of the amount to be refunded, is clearly erroneous.

#7. According to him, the respondent being an importer, imported the crude sunflower oil from various countries and cleared the goods on payment of customs duty. The respondent self-assessed the bills of entry under Section 17(1) of the Act, 1962 (‘the Act’ for short) and discharged the applicable customs duty for the period from April 2017 to July 2017 and September 2017 and October

#2017. Hence, the imports were completed during the year 2017 and the bills of entry were assessed to customs duty during the year 2017.

#8. The respondent claimed the refund under Section 27(1)(a) of the Act on account of excess payment of customs duty on account of including handling charges at 1% in the assessable value at the time of clearance of import cargo. The said claim was rejected by the Original - 11 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W Authority vide Order-In-Original dated 11.05.2018 on the ground that the respondent did not furnish required documents in support of its claim.

#9. Aggrieved by the said Order-In-Original, the respondent preferred an appeal before the Commissioner of Customs (Appeal) under Section 128 of the Act. The Commissioner (Appeals) Order-In-Appeal No.365/2018 dated 15.11.2018, remitted the matter to the Original Authority for de-novo adjudication with a direction to follow principles of Natural Justice. He referred to the powers of the Commissioner (Appeals) while dealing with the statutory appeals. Section 128 of the Act provides for appeals to be filed before the Commissioner (Appeals) and Section 128A of the Act regulates the powers and procedure after the appeal is filed. He refers to Section 128A of the Act, which we reproduce as under: “128A. Procedure in appeal.—(1) The Commissioner (Appeals) shall give an opportunity to the appellant to be heard if he so desires. (2) The Commissioner (Appeals) may, at the hearing of an appeal, allow the appellant to go into any ground of appeal not specified in the grounds of - 12 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W appeal, if the Commissioner (Appeals) is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable. (3) The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass pass such order, as he thinks just and proper,— (a) confirming, modifying or annulling the decision or order appealed against; or (b) referring the matter back to the adjudicating authority with directions for fresh adjudication or decision, as the case may be, in the following cases, namely:— (i) where an order or decision has been passed without following the principles of natural justice; or (ii) where no order or decision has been passed after re-assessment under section 17; or (iii) where an order of refund under section 27 has been issued by crediting the amount to Fund without recording any finding on the evidence produced by the applicant]:] Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order: Provided further that where the Commissioner (Appeals) is of opinion that any duty has not been - 13 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W levied or has been short-levied or erroneously refunded, no order requiring the appellant to pay any duty not levied, short-levied or erroneously refunded shall be passed unless the appellant is given notice within the time-limit specified in section 28 to show cause against the proposed order. (4) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision. (4A) The Commissioner (Appeals) shall, where it is possible to do so, hear and decide every appeal within a period of six months from the date on which it is filed. (5) On the disposal of the appeal, the Commissioner (Appeals) shall communicate the order passed by him the appellant, adjudicating authority, Principal Chief Commissioner of Customs or Chief Commissioner of Customs and the Principal Commissioner of Customs or Commissioner of Customs.”

#10. According to him, from the above provision, it can be ascertained that the Commissioner (Appeals) has no jurisdiction or power to remand the matter except as provided in the above provision. Section 128A(3)(b)(i) is applicable facts of the present case. The - 14 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W Commissioner (Appeals) has limited power of remand. The Commissioner (Appeals) is not empowered to remand the matter except under the circumstances mentioned in the above provision. If the conditions for remand are not satisfied, the Commissioner (Appeals) is bound to dispose of the appeal on merits of the case without remanding.

#11. In view of the above statutory mandate, the order of remand passed by the Commissioner (Appeals) should be construed as an order remanding the matter on the ground mentioned in Section 128A (3)(b)(i) where the order or decision has been passed without following the principles of Natural Justice. The Commissioner (Appeals) in the present case incidentally dealt with the merits of the issue and ultimately held that, the order rejecting the refund was passed in violation of principles of Natural Justice.

#12. The said ground was though urged before the Tribunal with regard jurisdiction of Commissioner (Appeals) to remand the matter, the Tribunal failed to record any finding on the said issue. - 15 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W

#13. According to Sri. Neeralgi, in the present case, the respondent voluntarily discharged the duty including the duty on 1% of handling charges. At the time of discharging the duty, the judgment of the Hon'ble Supreme Court in the case of Wipro Ltd. (supra) was available to them and the respondent being aware of the same, had discharged the duty voluntarily under Section 17(1) of the Act.

#14. According to him, no demand was raised by the Customs/appellant in this regard. If the respondent was under the impression that such duty was not liable to be discharged and there was doubt regarding the same, they should have paid the duty under protest which is not the case. Even otherwise, the respondent should have requested for the provisional assessment of duty under Section 18 of the Act.

#15. Sri. Neeralgi stated, the respondent, for the reasons best known to them, did not choose to resort to provisional assessment also. In view of the above, the self-assessment of bills of entry has attained finality. - 16 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W

#16. After the self-assessment became final, the respondent made refund claim of duty discharged on 1% of the handling charges.

#17. According to him, in view of the above admitted factual position, the issue now for consideration before this Court is, whether after the finalization of self-assessment of bills of entry, the refund sanctioning authority has jurisdiction to grant refund without there being modification/change in the self-assessment and grant of refund after finalization of assessment would amount to revising/reviewing the original concluded assessment without the authority of law?

#18. The refund sanctioning authority cannot sit over the concluded assessment as an appellate/revisional authority, as no such power is conferred under the Act/Rules. The refund sanctioning authority has no jurisdiction to grant refund by overriding the concluded assessment. The Tribunal has completely ignored this jurisdictional aspect. - 17 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W

#19. The contention of the respondent that the provision contained in Section 149 of the Act provides for amendment of bills of entry and no time limit is prescribed for amendment of bills of entry is misplaced in the light of the admitted fact that the respondent did not choose to amend the bills of entry within a reasonable period of time after the imported goods have been cleared for home consumption or deposited in a warehouse. In view of proviso to Section 149 of the Act, the amendment of bills of entry by invoking Section 149 of the Act is not permissible at this stage of the proceedings.

#20. According to him, the reliance placed on the judgment of the Supreme Court in the case of Mafatlal Industries Ltd. -Vs.- Union of India [(1997) 5 SCC 536] is misplaced, considering the admitted position. The judgment passed in the case of Wipro Ltd. (supra) was very much available to the respondent much before the import took place. The said judgment was rendered in the year 2015 and imports were effected during the year - 18 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W 2017-18. It is not the case that the judgment came much later to the date of imports.

#21. The respondent chose not to avail the benefit of the judgment on his volition by discharging the duty on the 1% of the handling charges. Immediately after the imports were complete and bills of entry were assessed, they made a claim for refund based on the said judgment of the Supreme Court. The conduct of the respondent is shrouded in mystery. The respondent had failed to explain and justify as to why they discharged the duty by self-assessing the bills of entry without any protest or without seeking provisional assessment to be done in the case.

#22. The duty which was discharged voluntarily under the self-assessment cannot be termed as a duty paid on demand. However, the self-assessment is also an assessment amenable to challenge as held by the Supreme Court the case of ITC Ltd. -Vs.- Commissioner of Central Excise, Kolkata IV [(2019) 17 SCC 46] - 19 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W

#23. He also referred to the dictum laid down in the case of Mafatlal Industries Ltd. (supra) paragraph No.108 of the said judgment lays down the propositions.

#24. He submitted that, in view of proposition laid down by the Supreme Court in the above case, particularly proposition at paragraph 108(iv) and (x), the respondent cannot claim advantage of judgment or order passed in the case of another person when the assessments are concluded and not re-opened. Further, once the levy is held as unconstitutional, the person cannot resort to the statutory remedy provided under respective enactments since the levy would become outside the purview of the Act. The said proposition is squarely applicable to the facts of the present case. The Tribunal has not appreciated the same.

#25. The respondent contended that, since the 1% of handling charges is held unconstitutional in the case of WIPRO Ltd. (supra), the same cannot be subjected to duty and hence, the levy of duty on 1% of handling charges is unconstitutional and at the same time, - 20 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W respondent has made refund claim under the provisions of the Act which is self-contradictory and legally untenable in view of the above referred constitutional Bench Judgment in the case of Mafatlal Industries Ltd. (supra). Further, as per the said judgment, the concluded assessments are not permitted to be re-opened on the ground that the levy has been held to be unconstitutional in some other person's case.

#26. To fortify the said submission, Sri. Neeralgi relied upon the subsequent judgments of the Supreme Court in the cases of ITC Ltd. (supra) and Priya Blue Industries Ltd. v. Commr. of Customs (Preventive) [(2005) 10 SCC 433] wherein the Supreme Court has followed the dictum laid down in the case of Mafatlal Industries Ltd. (supra) and has held that refund is inadmissible in the case of concluded assessments and the refund sanctioning authority has no jurisdiction to grant refund by overriding the concluded assessments. The relevant paragraphs No. 20, 44 and 47 of the judgment in the case of ITC Ltd. (supra) is extracted below: - 21 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W “20. Right of appeal is available to any person i.e. department as well importer/exporter against an order of self- assessment. Until and unless assessment order is modified and a fresh order of assessment is passed and duty re-determined, the refund cannot be granted by way of refund application. The refund authorities cannot take over the role of Assessing Officer. The officer considering the refund claim cannot reassess assessment order. An assessment order has to be questioned within the stipulated period of limitation. The refund application cannot be entertained directly under Section 27 unless the order of assessment is appealed against and is modified.

#44. The provisions under section 27 cannot be invoked the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re- assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided exemption notification. Existence of those exigencies - 22 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re- assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. V. Union of India [2010] 3 taxmann.com 256 (Bom) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (Supra).

#47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within - 23 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W the ken of Section 27 to set aside the order of self- assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act.”

#27. With regard to substantial question of law not formulated in the memorandum of appeal and seeking permission of this Court to hear the appeal on any other substantial question of law not formulated by it, he submitted that this Court has ample powers to hear the appeal on any other substantial question of law not formulated by it. In this regard the provisions contained in Section 130 of the Act are relevant. Section 130 of the Act provides for Appeal to High Court.

#28. Proviso to sub-section (4) of Section 130 of the Act confers power on this Court to hear the appeal on any other substantial question of law not formulated if it is satisfied that the case involves such question. Further, sub-section (6) of Section 130 empowers this Court to determine any question which has not been determined by - 24 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W the Tribunal. Conjoint reading of these provisions provide for hearing of appeal on any other question of law which has not been formulated and which has not been determined by the Tribunal.

#29. In view of the issues discussed in the foregoing paragraphs and the law declared by the Supreme Court, the Tribunal has not determined the said issues. The said issues are substantial questions of law on undisputed facts particularly with regard to the jurisdiction to grant refund. The issue of jurisdiction goes to the very root and can be raised at any stage of the proceedings. Hence, the contention of the respondent that no new ground should be admitted is misconceived and untenable.

#30. Therefore, he prays that this Court to consider the framing of following additional substantial questions of law:

#4. WHETHER, the Tribunal is right in allowing the refund claim of the respondent without there change/modification self- assessment of bills of entry under Section 17(1) - 25 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W of the Act, 1962 and the same having been attained finality?

#5. WHETHER, the impugned Final Order of the Tribunal amounts to reviewing/revising the self- assessment of bills of entry and the same is without jurisdiction?

#6. WHETHER, the Tribunal has jurisdiction to re-open the concluded assessment by granting refund without there being any challenge to the concluded assessment of bills of entry?

#31. With regard to the maintainability of the Appeal in view of Instruction dated 02.11.2023 F.No.390/Misc/30/2023-JC issued by the CBIC where in the monetary limit is prescribed for maintaining an appeal before various forums, the monetary limit prescribed for maintaining an appeal before the High Court is Rs.1 Crore. All the appeals below the said limit are liable to be withdrawn or rejected on the ground of monetary limit. However, an exception to the said monetary limit is also mentioned in the said Instruction. Paragraph 2 (C) of the said Instruction carves out an exception by stating that 'Classification and refund issues which are of legal and/or - 26 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W recurring nature' are saved. In the present case, the issue involves refund which is purely legal in nature. Hence, the appeal is maintainable before this Court.

#32. He prays that, additional substantial questions of law be framed and answer the same in favour of the appellant and the appeal filed by the appellant be allowed by dismissing CSTA No.8/2021 filed by the respondent. Submissions of learned counsel for M/s Agrotech/ respondent in CSTA No.12/2020: Submissions on Maintainability of Appeal:

#33. At the outset, Sri. P.B.Harish, learned counsel appearing for M/s Agrotech/respondent stated, in Circular No. F.No: 390/Misc/30/2023-JC dated 02-11-2023, the Department has set a monetary threshold of Rs. 1 crore below which it shall not file an appeal in the High Court.

#34. Exceptions exist where an appeal can be filed regardless of the amount, specifically for: "Refund issues which are of legal and/or recurring nature."

#35. According to him, the department's appeal before the High Court does not raise any substantial questions of - 27 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W law and primarily revolves around procedural aspects already settled by the Tribunal. i. The Appellant incorrectly claims Notification 91/2017-Cus is prospective, a matter already settled by lower authorities. ii. The Appellant misrepresents the Hon’ble Supreme Court's ruling regarding handling charges, failing to acknowledge that CIF contracts already include costs, framing new arguments not previously disputed. This point fact-based and does not involve any substantial legal question iii. The contention regarding refunds being made through Duty Scrips rather than cash is a procedural issue, not a substantial question of law. iv. The Appellant is merely attempting to reopen factual determinations already conclusively settled. v. The Appellant is attempting to introduce new arguments at the appellate stage, which is not permissible and amounts to a new case.

#36. The refund arises from unique circumstances related to a specific period January 2017 to December - 28 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W 2017, reflecting a one-time situation rather than a recurring issue affecting multiple transactions.

#37. According to him, the Supreme Court in Wipro Ltd. (supra), ruled against fixed 1% FOB value for handling charges, as it contradicted Section 14 of the Act and lacked rational basis, violating Article 14 and therefore held that amendment deemed unsustainable, stating it should only when actual charges unascertainable. (Para 31 and 36 of Wipro case)

#38. The provisions under challenge in the present case mirror the arbitrariness identified in Wipro (supra) and potentially constitutes an unconstitutional levy as they fail to reflect actual costs. This results in violation of Article 265, justifying claim for refund and challenging the legal basis for the tax imposition.

#39. The Supreme Court in the decision of Mafatlal Industries Ltd. (supra) under Para 16, 17 and 18, observed that Refund Claims arise in two situations: - 29 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W i. Unconstitutional levy when a tax provision is struck down for violating constitutional limits, allowing refunds outside the Act's provisions. ii. Illegal levy when taxes are collected due to misinterpretation or erroneous findings under the Act, entitling taxpayers to refund under the Act's provisions.

#40. According to Sri. Harish, the Supreme Court in the case of Mafatlal Industries Ltd. (supra), emphasized the necessity of aligning tax collection with constitutional mandates, reinforcing that erroneous Interpretations leading to tax liability necessitate refunds. According to him, reading down Rule 10(2) i. In the context of Rule 10(2), reading down ensures that the provision does not infringe on taxpayers' rights by imposing arbitrary charges. ii. The Supreme Court declared the imposition of a notional 1% handling charge under Rule 10(2) unconstitutional, emphasizing that only actual charges should be included in the customs valuation. - 30 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W iii. The decision effectively read down Rule 10(2) of the Customs Valuation Rules to ensure compliance with constitutional mandates. He argued on inapplicability of the decision relied upon by the appellant’s counsel:

#41. In the case of ITC Ltd. (supra), the Supreme Court deals only with a mistaken payment of duty under the law as per Mafatlal Industries Ltd. (supra), it rightly has to be subjected to the rigours of Section 27 if the Customs Act in order to claim refund.

#42. ITC Ltd. (supra) does not deal with a situation of refund of Duty paid on account of the Supreme court declaring such levy to be in violation of Article 14 and Section 14 of the Customs Act.

#43. The claim filed under section 27 is at best, a procedural infirmity that cannot be held to deny the substantive benefit of refund of a duty held to be unconstitutional - 31 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W Submissions on the new ground urged by the Appellant counsel:

#44. According to Sri. Harish, in the present case, the question of modifications of assessment was not urged before the lower authorities. The appellant's attempt to urge new grounds regarding the modifications of assessment before the High Court should be deemed inadmissible and should be rejected outrightly accordance with established legal norms and principles of fair adjudication. On this submission, he has relied upon the judgment of the Supreme Court in the case of Commissioner of Central Excise, Bangalore -Vs.- Brindavan Beverages (P) Ltd. and Ors. [(2007) 5 SCC 388] Submissions on time limit to file the amendment to bill of entry:

#45. The relevant provision for amending a bill of entry is encapsulated in Section 149 of the Act. This section states: "Save as otherwise provided in sections 30 and 41, the proper officer may in his discretion authorize any - 32 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W document after it has been presented in the customs house to be amended." According to him, the language of Section 149 does not impose a specific time frame within which amendments must be made.

#46. The Telangana High Court in the case of Sony India Pvt. Ltd. -Vs.- Union of India and Another [2021 SCC OnLine TS 982], directed to amend the bill of entry to reflect correct duty rate, enabling assessee to seek refund of excess duty paid, in line with the Supreme Court's rulings in similar matter. The High Court confirmed the need to amend the bills of entry stating that amendments under Section 149 can occur if based on documentary evidence existing at the time of clearance. He stated, the Tribunal on the impugned order, has erred is not granting interest on the refund granted by it. He prays, the appeal filed by the appellant be dismissed and the appeal filed by the respondent be allowed. Analysis:

#47. Having heard the learned counsel for the parties and perused the record, at the outset we may state that, - 33 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W CSTA No.12/2020 has been admitted on the following substantial questions of law: 1) Whether the Tribunal is correct and justified in holding that notification No.91/2017 application? has retrospective 2) Whether the Tribunal is correct in holding in following the judgment of the Hon'ble Supreme Court in the case of Wipro Ltd., when the respondent has not furnished documents from which value of the goods was ascertainable? 3) Whether the Tribunal is correct and justified in ordering the refund of the duty paid in DEPB scrips in cash?

#48. Insofar as CSTA No.8/2021 is concerned, the issue of maintainability of the appeal under Section 130A(3) of the Act has been raised by the Registry. Though we note the substantial questions of law as proposed by the respondent in the appeal as under, the record reveals that these proceedings arise from the request made by the respondent for refund of excess customs duty paid (including cess) on imports totalling to Rs.40,64,285.19/- vide letter dated 13.01.2018: - 34 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W Whether the order of Tribunal is correctin not holding that the Appellant (importer) is entitled to interest beyond the period of three months under Section 27A of the Act on refund of the excess customs duty of 1% paid on handling charges?

#49. It may be stated that, the said application was rejected by the Customs vide the order-in-original passed by the Assistant Commissioner (Refunds) on 11.05.2018. The grounds on which the request was rejected have already been reproduced above. An appeal was filed by the respondent on 14.06.2018. The Commissioner (Appeals) passed an order-in-appeal dated 15.11.2018 by stating as under: “11. In view of the foregoing, I set aside the O-I-O No.25/2018-19 Refund dated: 11.05.2018 and remand the issue back to the original authority for denovo adjudication with a direction to follow principles of natural justice, to finalize the refund claim with respect to admissibility of claim and factum of unjust enrichment to the provisions under which the application for refund was made and to give reasonable and effective personal hearing to the importer. The issue shall be finalised in 10 weeks of receipt of this order in view of the narrative made supra. The appeal is disposed of by way of remand.” - 35 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W

#50. From the above it is noted, the Commissioner (Appeals) has remanded the matter to the Adjudicating Authority for de novo adjudication with certain directions. It is also noted, pursuant to the order dated 15.11.2018, the Adjudicating Authority has passed an order dated

26.02.2019 rejecting the claim for refund of respondent with the following findings: “10. I have carefully gone through the case records. M/s M.K.Agrotech Pvt. Limited, Mandya have filed refund application for excess paid customs duty on account of including handling charges at 1% in the assessable value at the time of clearance of imported cargo for an amount of Rs.40,64,285/ On verification of Bills of Entry with respect to refund application submitted, it was observed that the claimant had imported goods under Licence and the claimant has paid the duty in cash as well as by utilizing duty credit scrip. It is observed that the claimant has claimed refund for excess customs duty paid on inclusion of handling charges at 1% in the assessable value at the time of clearance of imported cargo.

#11. However, the claimant has failed to submit proper documents or other evidences to establish that the amount of duty in relation to which such refund is claimed, was collected from him and the - 36 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W incidence of such duty had not been passed on to any other persons as per the provisions of Section 27 of the Customs Act, 1962.

#12. Further, it is observed that the applicant is claiming refund of customs duty paid on account of adding 1% handling charges to the CIF value of the imported goods cleared by them. Their contention is that the 1% handling charges should not be added to CIF value to arrive at the assessable value of goods. The above contention is contrary to Rule 10(2) Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 (valid

25.09.2017) which reflects as - "(2) For the purposes of sub-section (1) of section 14 of the Customs Act, 1962 (52 of 1962) and these rules, the value of the imported goods shall be the value of such goods, for delivery at the time and place of importation and shall include - (a) the cost of transport of the imported goods to the place of importation; (b) loading, unloading and handling charges associated with the delivery of the imported goods at the place of importation; (c) the cost of insurance: Provided that - (i) where the cost of transport referred to is not in clause (a) ascertainable, such cost shall be - 37 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W twenty per cent of the free on board value of the goods; (ii) the charges referred to in clause (b) shall be one per cent of the free on board value of the goods plus the cost of transport referred to in clause (a) plus the cost of insurance referred to in clause (c); (iii) where the cost referred to in clause (c) is not ascertainable, such cost shall be 1.125% of free on board value of the goods;" Hence, 1% handling charges as above shall be includible in the assessable value of goods as per the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 valid till 25.09.2017.

#13. Notification No.91/2017 Cus. (NT) dated

26.09.2017 has amended the above said sub-rule(2) as below:- "(2) For the purposes of sub-section (1) of section 14 of the Customs Act, 1962 (52 of 1962) and these rules, the value of the imported goods shall be the value of such goods, and shall include - (a) the cost of transport, loading, unloading and handling charges associated with the delivery of the imported goods to the place of importation; (b) the cost of insurance to the place of importation: Provided that where the cost referred to in clause (a) is not ascertainable, such - 38 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W cost shall be twenty per cent of the free on board value of the goods: Provided further that where the free on board value of the goods is not ascertainable but the sum of free on board value of the goods and the cost referred to in clause (b) is ascertainable, the cost referred to in clause (a) shall be twenty per cent of such sum: Provided also that where the cost referred is not clause ascertainable, such cost shall be 1.125% of free on board value of the goods: (b) the goods Provided also that where the free on is not board value of ascertainable but the sum of free on board value of the goods and the cost referred to in clause (a) is ascertainable, the cost referred to in clause (b) shall be 1.125% of such sum: Provided also that in the case of goods imported by air, where the cost referred to in clause (a) is ascertainable, such cost shall not exceed twenty per cent of free on board value of the goods: Provided also that in the case of goods imported by sea or air and transshipped to another customs station in India, the cost of insurance, transport, loading, unloading, handling charges associated with such transshipment shall be excluded. Explanation:- The cost of casseport of the imported goods referred to in clause (a) includes the the ship demvarrage charges on charted vessels lighterage or barge charges.” - 39 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W

#14. In view of the deletion of erstwhile rule 2(b) and proviso (01) 1% handling charges shall not be added to CIF value to arrive at assessable value, from 26.09.2017 onwards. This is also evident from Para 4 of CBECS Circular No 39/2017-Cus. Dated

26.09.2017. Thus, inclusion of 1% handling charges till 25.09.2017 was correct and legal and the claim for refund of duty relevant to 1% handling charges appears to be not acceptable.

#15. Further, as per the provisions of Section 27 of Customs Act. 1962, the application for refund should be accompanied by the documentary or other evidences to establish that the amount of duty in relation to which such refund is claimed is collected from him (claimant) or paid by him and the incidence of such duty has not been passed on by him to any other person. It was observed that the claimant has also failed to submit/produce original copy of Bills of Entry and other relevant documents/evidence in support of their refund claim even after issuance of show cause notice bearing S-9/15/2018 Cus. Refund dated 18.02.2019.

#16. In view of the above, I pass the following order. ORDER I reject the claim for refund of Rs. 40,64,285/- (Rupees Forty Lakhs Sixty Four Thousand Two Hundred Eighty Five only), filed under Section - 40 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W 27(1)(a) of the Customs Act, 1962, by M/s. M.K Agrotech Pvt Ltd, 389, Kavery Layout, M.B.Road. Srirangapatna, Mandya Dist-571438, in terms of Section 27(1)(a) of the Customs Act, 1962 read with”

#51. It appears that, the respondent has not challenged the said order. Rather, the respondent has filed an appeal under Section 129A of the Act before the Tribunal impugning the order dated 15.11.2018 of the Commissioner (Appeals). Appropriate should have been for the respondent to have challenged the order dated

26.02.2019 before the Commissioner (Appeals). It appears that, the aspect of Adjudicating Authority passing the order dated 26.02.2019 was not brought to the notice of the Tribunal for the reasons best known to the parties. We may, at this stage, highlight the fact that the Adjudicating Authority in its order dated 26.02.2019, inter alia had concluded the following: i. Handling charges shall be includible in the assessable value of goods as per the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 valid till 25.09.2017; - 41 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W ii. As per the provisions of Section 27 of the Act, the application for refund shall be accompanied by the documentary or other evidences to establish that the amount of duty in relation to which such refund is claimed is collected from him or paid by him and the incidence of such duty has not been passed on by him to any other person. The Adjudicating Authority comes to a conclusion that, M/s Agrotech has also failed submit/produce original copy of bills of entry and other relevant documents/evidence in support of their refund claim.

#52. Having noted the grounds on which Adjudicating Authority has passed the fresh order dated 26.02.2019, we may also highlight the grounds on which the Tribunal which allowed the appeal filed by the respondent in the following manner: i. Imposition of customs duty on adhoc 1% handling charges is bad in law. ii. CBEC Circular No.39/2017

26.09.2017, has clarified that the amendment to the Valuation Rules will be from retrospective effect. - 42 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W iii. The directions of Commissioner (Appeals) to examine the claim of unjust enrichment when the matter has clearly been examined and decided in favour of M/s Agrotech and the Revenue is not under appeal on this aspect of the Order-in- Original is not tenable in law. iv. Both the authorities have wrongly held that refund cannot be paid in cash since the duty was paid through DEPB scrips.

#53. Sri. Neeralgi has prayed for framing of additional substantial questions of law in the manner which we have already reproduced in the aforesaid paragraph.

#54. The objection of respondent to the additional substantial questions of that, question of modifications of assessment was not urged before the lower authorities and also such grounds need to be rejected being contrary to the established legal norms and principles of fair adjudication.

#55. Having noted the substantial questions of law as framed on 26.03.2021, we note the substantial question No.2, as to the applicability of the judgment of the - 43 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W Supreme Court in the case of Wipro Ltd. (supra) when the respondent has not furnished the documents, the said issue goes to the root of the claim for refund made by the respondent and hence, the same need to be answered first. It is noted, the Tribunal has concluded by referring to the judgment of the Supreme Court in the case of Wipro Ltd. (supra) that imposition of customs duty on adhoc 1% handling charges is bad in law. The said conclusion is without any reasoning. In any case, such a conclusion of the Tribunal is contrary to the judgment of the Supreme Court. Though the Supreme Court has held that the stipulation is bad in law and unsustainable, the Supreme Court has also read down proviso (ii) to sub-rule (2) of Rule 9 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 inserted by notification dated 05.07.1990 to mean that, the clause would apply when actual charges referred to in Rule 9(2)(b) are not ascertainable. So it follows, 1% handling charges shall be payable as customs duty if the actual charges are not ascertainable. The conclusion of the - 44 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W Supreme Court that the imposition of customs duty on adhoc 1% handling charges is bad in law when despite the actual charges mentioned at (b) are ascertainable, still the 1% handling charges are claimed. Unfortunately, the Tribunal has misread the conclusion to hold, that in every eventuality, adhoc 1% handling charges have been held to be bad. In the case in hand, respondent has actually paid customs duty on adhoc 1% handling charges and the said assessment has become final. No attempt has been made by the respondent to challenge the assessment. In fact, reliance has been placed by Sri. Harish on the judgment of the Supreme Court in the case of Mafatlal Industries Ltd. (supra) to contend that, the refund claim arises in two situations: (i) Unconstitutional levy: when a tax provision is cut down for violating the constitutional limit allowing refund outside the Act provisions; (ii) Illegal levy: when the taxes are collected due to misinterpretation or erroneous findings under the Act entitling the taxpayers to refund under the Act. According to him the case in hand is covered by (ii) above. Suffice to state, the plea of - 45 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W Sri. Neeralgi is that, the respondent itself has paid the duty without demand and hence Mafatlal Industries Ltd. (supra) is not applicable. In fact, he relied upon ITC Ltd. (supra) to contend Mafatlal Industries Ltd. (supra) has no applicability in the facts, though we may state no such objection has been taken by the appellant before the authorities below.

#56. In any case what is also important to be noted is that, after Commissioner (Appeals) passed the order and during the pendency of the appeal before the Tribunal, the Adjudicating Authority has passed an order dated

26.02.2019, whereby the Adjudicating Authority has dismissed the appeal by relying upon notification dated

26.09.2017 to hold that till 25.09.2017, 1% handling charges are includable on assessable value of goods. By the said notification, the Customs had deleted Rule 2(b) and proviso (ii), whereby according to the Customs, 1% handling charges shall not be added to CIF value effective from that date. In other words, before that date, 1% handling charges shall be added to CIF value. The - 46 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W Adjudicating Authority has also rejected the claim by relying upon Section 27 of the Act to hold that, no documents or other evidence(s) have been filed to show the duty in relation to refund claim has not been passed on by the respondent to any other person. The Tribunal while allowing the appeal vide the impugned order, did not had the benefit of the order of the Adjudicating Authority dated 26.02.2019 as the same was not placed before it. It was also not the case of the respondent that it had filed an appeal against the same. Till such time the said order (dated 26.02.2019) is set aside, it continues to hold the field.

#57. As noted from the order dated 26.03.2021, the substantial question of law No.2 as framed by this Court is as to whether the Tribunal is correct in holding the judgment of the Supreme Court in the case of Wipro Ltd. (supra) shall be applicable when the respondent has not furnished documents from which the value of the goods was ascertainable. In other words, the substantial question of law incorporates that the judgment of the - 47 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W Supreme Court in Wipro Ltd. (supra) shall not be applicable when the respondent has not furnished documents to show that value of the goods was ascertainable.

#58. So, any determination of claim for refund, more specifically in respect of payment of customs duty by including 1% handling charges, has to be decided keeping in view the above judgment of the Supreme Court and by considering the agreement governing the parties. The contract in the case in hand being a CIF contract which includes cost of the goods, insurance and transportation to the port of destination, it may obligate the buyer to be responsible for customs, unloading of goods etc., and if value of the goods and services are not ascertainable, surely 1% handling charges shall be chargeable and the judgment of the Supreme Court in Wipro Ltd. (supra) shall be applicable in the manner the Supreme Court has read down the provision.

#59. Having given thoughtful consideration to the facts which arise for consideration including order dated - 48 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W

26.02.2019 has not been challenged by respondent, we are of the view that, appropriate shall be the impugned order of the Tribunal is set aside and the matter is remanded back to the Commissioner (Appeals) by granting liberty to the respondent to file its grounds of appeal against the order dated 26.02.2019 and upon such filing, the Commissioner (Appeals) shall consider the issue of justifiability of claim for refund when the customs duty to the extent of 1% handling charges has been deposited through self-assessment keeping in view the applicability of the judgment in the case of Mafatlal Industries Ltd. (supra) and Wipro Ltd. (supra) (as the case may be) in the facts of this case and proceed in accordance with law. Since we are remanding the matter to the Commissioner (Appeals), the Commissioner (Appeals) shall also decide the issue of scope/effect of notification dated 26.09.2017 to the facts keeping in view the judgment of the Supreme Court in the case of Wipro Ltd. (supra) and the law on the subject and also the issue relatable to Section 27 of the Act. The grounds of appeal shall be filed by the - 49 - CSTA NO. 8 OF 2021 CSTA NO. 12 OF 2020 C/W respondent within a period of six weeks from today and the Commissioner (Appeals) shall decide the appeal in terms of this order within the period of three months after the expiry of six weeks as stated above. It goes without saying, upon passing of the order, the parties shall be at liberty to seek such remedy as available in accordance with law. The appeals are disposed of. In view of disposal of the appeals, pending application(s), if any, shall stand disposed of. Sd/- (V KAMESWAR RAO) JUDGE Sd/- (S RACHAIAH) JUDGE PA