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Refund of export duty paid in excess prior to 31-12-2008
without treating FOB as cum-tax value, whether ad-
missible in absence of challenge to assessment order?
The Supreme Court Bench comprising Hon’ble Mr. Justice A.M.
Khanwilkar and Hon’ble Mr. Justice Dinesh Maheshwari on 23-9-2019 issued
notice in the Civil Appeal Diary No. 47931 of 2018 filed by Commissioner of Cus-
toms, Visakhapatnam against the CESTAT Final Order No. A/30718/2018, dated
12-7-2018 (Mahalaxmi and Co. v. Commissioner). While issuing the notice, the Su-
preme Court passed the following order :
“Learned Counsel for the appellant has invited our attention to the
judgment dated 18-9-2019 in Civil Appeal Nos. 293-294 of 2009.
Learned Counsel for the respondent prays for time to distinguish this
decision.
Issue notice on the application for condonation of delay as well as on
the Civil Appeal, returnable within four weeks.
Mr. Punit Dutt Tyagi, Advocate waives notice for the sole respondent.
The Appellate Tribunal in its impugned order had followed the decision
in the case of Commissioner v. Sameera Trading Company reported in 2011 (264)
E.L.T. 578 (Tri.-Bang.) which was subsequently followed in the CESTAT Final
Order Nos. 1071-1075/2010, dated 15-7-2010 (Commissioner v. Muneer Enterprises),
appeal against which was dismissed by the Supreme Court as reported in 2015
(319) E.L.T. A226 (S.C.). In the aforesaid case of Sameera Trading Company, the
refund of Customs duty paid in excess on 11-8-2008 on the FOB value of export-
ed goods upto 31-12-2008 where assessment order stood unchallenged by the
exporter, was held to be admissible in view of C.B.E. & C. Circular, dated 10-11-
2008 clarifying that till 31-12-2008, the FOB value on which export duty was dis-
charged was to be treated as cum-tax value.
REPRESENTED BY : Mr. B. Krishna Prasad, AOR, Mr. Zoheb Hossain,
Mr. Shirin Khajuria and Mr. Vikas Bansal,, Advocates,
for the Petitioner.
Mr. Punit Dutt Tyagi, AOR, Mr Aaditya Bhatta-
charya, Ms. Apeksha Mehta, Ms Ishita Mathur and
Ms. Monica Kasturi, Advocates, for the Respondent.

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EXCISE LAW TIMES  15th June 2020  48