COMMISSIONER OF CUSTOMS Vs. SAYONARA EXPORTS PVT. LTD.

JUDGEMENT

(1.) THIS application filed by the department (appellant) is for stay of operation of the impugned order, wherein learned Commissioner (Appeals) allowed a refund claim of the respondents holding that Section 27 of the Customs Act was not applicable to a claim for refund of Extra Duty Deposit (EDD). After examining the records and hearing both sides, I am of the view that the appeal itself must be summarily disposed of. Accordingly, after dismissing the stay application, 1 take up the appeal.

(2.) IN the impugned order, learned Commissioner (Appeals) held as above by following the Tribunal's decision in Motor Industries Co. Ltd. v CC, Chennai , wherein the Customs authorities were held liable to refund EDD to the assessee. In the present appeal, it is asserted by the department that Section 27 of the Customs Act was applicable to the respondents' claim for refund of EDD. However, the appellant is totally silent on the reliance placed by learned Commissioner (Appeals) on the Tribunal's decision in Motor Industries (supra), wherein a similar refund claim for EDD was allowed by the Tribunal holding that the department was duty -bound to refund such a deposit upon finalization of provisional assessment. There is not even an attempt on the part of the appellant to distinguish the case of Motor Industries (supra) from the facts of the case on hand. Ld. JCDR has reiterated the grounds of this appeal. He has, particularly, referred to Public Notice No. 45/2004 dated 10 -3 -2004 of the Chennai Customs Commissionerate, wherein the procedure to be adopted for settling refund claims arising out of finalization of provisional assessment was communicated to the trade. No copy of such public notice is available on record. Ld. JCDR has requested for an opportunity to file a copy of the public notice. But, after examining the provisions of Section 18 of the Customs Act pertaining to provisional assessments and their finalization, I am of the view that the present issue can be settled without reference to the above public notice. Under Section 18(1), any goods imported can be provisionally assessed to duty of Customs in certain circumstances. Under Sub -section (2) of the said section, the importer is liable to make up any deficiency of duty found upon finalization of assessment. He is entitled to a refund, if the duty finally assessed is found to be in excess of the duty paid upon provisional assessment. Apparently, it was in terms of these provisions that the Assessing Group which finalized the provisional assessment on 9 -6 -2000 forwarded the file to the Refund Section for refund of the EDD. When the statute says that the assessee is entitled to refund upon finalisation of assessment, the money is liable to be refunded to him without in -sisting -on a formal claim for refund. The provisions of Section 18 of the Customs Act governing provisional and final assessments of imports and exports are similar to the provisions of erstwhile Rule 9B of the Central Excise Rules, 1944. Under either of these provisions, any excess amount of duty found upon finalization of assessment is liable to be paid to the assessee who is entitled to refund. In the present case, the original authority refused to refund the EDD to the respondents, thereby defeating the very purpose for which the file was sent to the authority by the Assessing Group. This illegality was corrected by learned Commissioner (Appeals), following a decision of the Tribunal relating to a similar claim for refund of EDD. The appellant has not found fault with the reliance placed by learned Commissioner (Appeals) on the Tribunal's decision. In the circumstances, the appeal of the department is bereft of bona fides and the same is dismissed.