Refund of Additional duty of customs consequent to
Notification No. 102/2007-Customs dated 14th Sept,2007



The following points may be taken into consideration before
filing and claiming refund claim of the additional duty of customs.
1) Eligibility: when goods imported into India for subsequent sale .It covers only trading
goods who are liable to suffer sales tax in place of sale.
2) Time period for filing refund claim: Within six months from the date of duty payment as
.
per section 27(1)(i)(b) of the Customs Act 1962.The subsection 8 of the
section 3 of the Customs Tariff Act 1975 states that provision of the Customs
Act 1962 and rules and regulation made thereunder relating to refunds also
apply to the duty chargeable under the section 3.The additional duty of
customs is charged under sub section 5 of the section 3 of the Customs
Tariff Act 1975.Therefore provision of section 27 of the Customs Act are
also applicable for refund of additional duty of customs. The refund claim is to
be filed in the prescribed format under Customs Refund Application(Form)
Regulation ,1995.However, Unjust enrichment provisions are not attracted.
The notification itself says that it is the importer who is eligible for refund
claim provided he fulfill certain conditions as stated in the para 2 of the
Notification No 102.2007.Further the refund claim arose consequent to
payment of sales tax on imported goods and not in pursuance of
assessment order. There is no need to challenge assessment order before
appellate authority for such refund claim as held by Honorable SC in case
of Priya Blue and Flock India.
Argument for no time limit to file refund claim
a)But the Notification No 102/2007 does not specify any time limit for filing
refund claim. if any time limit is imposed for filing refund claim which is
consequent to the payment of sale tax on the imported goods at the time of
selling goods in domestic market, then, no refund of additional duty can be
availed for the goods sold after six months from duty payment. This is not
the legislator intention.
b)The additional duty of Customs is not a duty defined in the Customs Act.
The refund of duty is not to consequent to an order of assessment. No UJE
provisions are attracted. Then,only provision of time limit under section 27
is attracted,it is not legally correct.
As soon as goods are sold in the domestic market on payment of sale tax
and sale Invoice contains evidence of not availing Cenvat and payment of
sale tax,then,the importer is eligible for refund of additional duty of customs.
Hence, no time limit to file refund claim of the additional duty of customs.
3)Conditions to be satisfied for eligibility of refund claim as para 2 of the Notification
No 102/2007:
(a) The importer have to pay all duties;
(b) Not to avail CENVAT credit of the additional duty of customs .The
sale invoices should indicate specifically indicate in the invoice
that in respect of the goods covered therein, no credit of the
additional duty of customs levied under sub-section (5) of section 3
of the Customs Tariff Act, 1975 shall be admissible;
(c) The Refund claim to be filed at the place of assessment and duty
was paid on the imported goods.
(d) the importer shall, inter alia, provide copies of the following
documents along with the refund claim:
(i) TR-6 Challan as documentary evidence for payment of the
said additional duty;
(ii) Sale Invoices of the imported goods in respect of which
refund of the said additional duty is claimed;
(iii) documents evidencing payment of appropriate sales tax or
value added tax, as the case may be, by the importer, on sale of
such imported goods.
4) No test of Unjust Enrichment(UJE).
If the sale Invoices of the goods carries proof of Sale
Tax or VAT payment and non-admissibility of the Cenvat credit on account of said additional duty of
customs then the importer is eligible for refund of duty.
It is concluded that the refund claim may filed on the strength of Sale Invoices. There is no UJE bar.
No time limit restriction if refund claim is filed within six month of duty payment. However,any claim
after six months of duty payment may attract provisions of time bar,which may be contested by the
customs department.
The department may also issue further clarification in this regards.

Ravindra Kumar