Customs – Cestat Mumbai: Revenue has failed to establish through any kind of documents or case laws that debit of any amount under the DEPB scheme is not a mode of payment of duty, therefore refund of SAD paid through debiting DEPB License cannot be denied – Appeal allowed [Order attached]
Order date – 02 December 2022
- The Appellant, Virgo Suitings Pvt Ltd, had filed refund claims on 04/02/2016 and 04/04/2016 of SAD paid u/s. 3(5) of Customs Tariff Act, 1975 in terms of Notification no. 102/2007-CUS dated 14/09/2007 as amended by Notification No. 93/2008-CUS dated 01/08/2008.
- The refund claim was paid partly in cash and the remaining amount was debited from the relevant DEPB License.
- The Adjudicating Authority vide two separate Orders-in-Original dated 01/03/2017 and 11/04/2017 respectively sanctioned the refund of duty which was paid in cash and rejected the refund claims in respect of the duty which was debited from the DEPB License.
- Whether the appellant is entitled for refund of additional duty of Customs (SAD) paid through DEPB scrip/license?
- The Tribunal observed that the Notification dated 14/09/2007 as amended by Notification dated 01/08/2008 laid down certain conditions and the exemption under Notifications has to be upon fulfilment of those conditions only and nothing else. It is not disputed that the appellant have fulfilled the conditions therein and that is why the refund has been sanctioned of that part of the duty which has been paid in cash.
- The Tribunal relied the decision of the Hon’ble High Court of Delhi in Allen Diesels India Pvt. Ltd. v/s Union of India 2016 (334) E.L.T. 624 (DEL) wherein the importers were paying duty of Custom including SAD by using DEPB scrips but the department was not refunding the SAD on the ground that SAD had not been paid in cash but by utilizing DEPB scrips and the Hon’ble High Court vide order dated 01/02/2016 allowed the petitions filed by the importers and held that since the petitioner therein have fulfilled the conditions set out in Notification No. 10/2007-CUS for availing the refund, the department is directed to issue orders granting refund to the petitioner therein.
- Undisputedly, the Revenue has failed to establish through any kind of documents or case laws that debit of any amount under the DEPB scheme is not a mode of payment of duty, therefore the benefit cannot be denied to the appellant.
- Hence the Tribunal does not find any justification for rejecting the refund claim in respect of the duty which was paid through DEPB scrip and therefore the impugned order cannot sustain. Accordingly, the appeals filed by the appellant are allowed with consequential relief.