Assessee is entitled to refund of Anti-Dumping Duty paid provisionally even when the Assessment Order on the Bills of Entry is not challenged

Circuit Systems India Pvt. Ltd. (the Appellant) imported Glass Epoxy Copper and filed 5 Bills of Entry for the period October 2003 to January 2004 (Impugned period). During the Impugned period, the Anti-Dumping Duty was payable by the Appellant provisionally in terms of the Notification No. 141/2003 dated September 19, 2003 (the Notification). Later the Notification was withdrawn; therefore the Anti-Dumping Duty was not leviable on the Appellant.

Consequently, in terms of Rule 21 of the Customs Tariff (Identification, Assessment & Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1975, the Appellant filed refund claim of Anti-Dumping Duty paid by them provisionally, which was allowed by the Adjudicating Authority.

Being aggrieved, the Revenue preferred an Appeal before the Hon’ble Commissioner (Appeals). The Hon’ble Commissioner (Appeals) relying on the  decision of the Hon’ble Supreme in case of Priya blue Industries [2004 (172) ELT 1455 (SC)] rejected the refund claim filed on the ground that the Assessment of Bills of Entry has not been challenged and the Appellant has failed to pass bar of unjust enrichment. Aggrieved by the order of the Hon’ble Commissioner (Appeals), the Appellant preferred an appeal before the Hon’ble Tribunal, Mumbai.

The Hon’ble CESTAT, Mumbai relying on the decision of the Hon’ble High Court of Delhi in case of Aman Medical Products Ltd. [2010 (250) ELT 30 (Del)] held that as per Section 27(2) of the Customs Act, 1962, the duty borne by the Assessee is refundable without challenging the Assessment Order.

It was further held by the Hon’ble CESTAT, Mumbai that the Appellant has passed the bar of unjust enrichment as the Appellant had produced the Balance Sheet, which shows that the amount of Anti-Dumping Duty paid by them originally is recoverable advance from the customers and has also produced a certificate to the effect that the Anti-Dumping Duty has not formed part of the final product.

Therefore, the Hon’ble Tribunal allowed the appeal in favour of the Appellant and allowed the refund claim filed.