The Principal Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) non-payment of basic customs duty and Integrated Goods and Service Tax ( IGST ) at time of filing bes bars availment of refund benefit.
M/s. Mapaex Consumer Welfare Healthcare Pvt. Ltd, the appellant assesee filed letters/representation before the Asstt. Commissioner, ICD, Mandideep for the purpose of amendment or re-assessment of four Bill of Entries dated 16.05.2020 to 09.10.2020 filed by them for import of “Isomalt ST-M”. These BEs were assessed and given out of charge from the ICD through EDI System by the proper officer. The goods were take out of the ICD by the appellant.
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The appellant then sought to rectify the BEs so as to forego the benefit of IGST exemption availed by it on all the four BEs under Advance Authorisation No.5610005722 dated 07.11.2019 so that it could avail the IGST refund on export of finished goods under Section 16 of IGST Act, 2017 read with Rule 96 of the CGST Rules. As Rule 96(10)(a) specifically requires that the person claiming IGST refund on export of goods should not have availed the benefit under Notification No.79/2017-Cus dated 13.10.2017 which amended Notification No.18/2015-Cus dated 01.04.2015.
The question involved in this appeal is whether the appellant is entitle to seek the amendment of the BEs under Section 149 of the Customs Act.
In Cosmo Films Ltd. versus Union of India and Ors., where the fulfilment of “pre-import condition” incorporated in the Foreign Trade Policy and Handbook of Procedure, Notification No.33/2015-20 and Notification 79/2015 – CUS both dated 13.10.17 to claim exemption of IGST and GST compensation cess on inputs imported into India for the production of goods to be exported from India on the strength of an Advance. Authorisation was held to be arbitrary and unreasonable.
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The importer submitted that undertaking but no other information as requested above was provided. Both the Adjudicating Authority as well as the Appellate Authority had rejected the amendment on the ground that when the bills of entry were filed Explanation to Rule 96(10) of CGST Rules was already inserted vide notification no.16/2020 – Central Tax dated 23.03.2020 and the appellant could have exercised the option either to pay or not to pay any of the duties.
Secondly, the appellant had chosen not to pay the basic customs duty and IGST at the time of filing the said BEs, thereafter the appellant cannot change its stand at the later stage and make the payment to avail the benefit of refund.
It was evident that the appellant in their submissions have contended that DRI vide their letter, 20.11.2020 in other cases requested to the Adjudicating Authority to consider the appeals of all importers, who are willing to pay such IGST along with interest, however, as observed by the Commissioner, (Appeals) the said letter was not submitted by the appellant.
A single bench of Binu Tamta, Member (Judicial) directed that both the appellant and the Revenue may place on record the particulars of all the cases, where amendment has been allowed in similar circumstances so as to enable the Adjudicating Authority to arrive at a consistent and uniform conclusion.
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While allowing the appeal, the Tribunal set aside the impugned order.
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