Interim Relief to Vivo Mobile: CESTAT Directs Customs Dept to consider Refund Claim Filed in 2015 under SRF Case
for 1% Addl Duty
The Customs, Excise, and Service Tax Appellate Tribunal (CESTAT),
Delhi bench has directed the customs department to consider the refund claims
filed in the year 2015.
The Company, Vivo Mobile is engaged in the import and
distribution of mobile phones and its accessories in India. It paid the
Additional Duty of Customs at the rate of 6% up to February 2015 and
thereafter, at the rate of 12.5% under section 3(1) of the Customs Tariff Act
19756 on the 12 bills of entry. In the meantime, the Supreme Court delivered a
ruling in favour of SRF Ltd wherein it was held that
refund shall be allowed to them since for the purpose of attracting Additional
Duty under section 3 of the Customs Tariff Act on the import of a manufactured
or produced article, the actual manufacture or production of a like article in
India was not necessary and that for quantification of Additional Duty in such
a case, it has to be imagined that the article imported was manufactured or
produced in India and then to see what amount of excise duty was leviable thereon. Based on the above ruling, the Company
requested for refund of duty paid. However, the same was rejected by the
authorities.
The Tribunal bench comprising President Justice Dilip Gupta and Technical Member C J Mathew observed that
the Telangana High Court in Sony India also examined almost a similar
controversy as has been raised in these two appeals.
“The appellant therein had imported mobile phones in
India for trading purposes during the period 04.08.2014 to 29.01.2015. At the
time of import of the mobile phones, the petitioner had not claimed any
exemption under serial no. 263A (ii) of the Exemption Notification which
allowed payment of Additional Duty at the rate of 1% only in the Bills of Entry
in view of the decision of the Supreme Court in SRF Limited. The petitioner, in
view of the decision in the Supreme Court in ITC, made an application for
amendment of the Bills of Entries under section 149 of the Customs Act so that
after that the duty could be refunded. The application filed by the petitioner
was, however, rejected,” the Tribunal said.
The Tribunal, while concluding, held that “it is expected
that if such applications are now filed by Vivo Mobile, the same would be
adjudicated expeditiously as the refund applications were filed in 2015. It is,
therefore, ordered that in the event applications are now filed by Vivo Mobile,
they shall be decided expeditiously and preferably within a period of three
months from the date of filing of the applications. The refund applications, if
any filed after the decision is taken on such applications,
shall also be decided expeditiously.”