Refund of custom duty paid on imported goods that were re-exported.

PJ/Case Law /2016-17/3268

Case:-ABACUS PERIPHERALS PVT. LTD. VERSUS COMMISSONER OF CUS. (I), ACC, MUMBAI

Citation:-2016 (337) E.L.T. 434 (Tri-Mumbai)

Brief Facts:-The brief facts are that the appellant had imported one box; weighting 6.88 kg, having 200 pcs of 1GB DDR 2 SD RAM Modules from M/s. Micro Semiconductor Asia Pvt. Ltd., Singapore vide B/E No. 1599950, dated 13-6-2007. Goods were not cleared as per statement of the appellant goods were re-called back by the supplier who issued a credit memo No. 21069321, dated 25-7-2007 by which value of the goods has been returned to the appellant. Since the Bill of Entry No. 1599950 was showing pending in ICEGATE for payment of customs duty amounting to Rs. 1,83,723/- (duty of Rs. 1,00,275 + interest of Rs. 83,448) the appellant paid the same by mistake and oversight through online payment on 3-1-2013 vide ICEGATE reference No. IG03011312629339038 and internet transaction No. CK23813289. Realizing their mistake, the appellant filed the refund claim on 11-1-2013 for the amount of Rs. 1,83,723/-. By deficiency memo the appellant was asked to submit all the import and export documents. Appellant vide their letter dated 29-3-2013 conveyed to the customs authority that the original copy of duplicate Bill of Entry No. 1599950, dated 13-6-2007 was not available with them as no physical delivery of the goods were made to them by ACC, Sahar at any point of time commencing from filing of Bill of Entry till the payment was made and the copy of Bill of Entry had not been generated. The appellant could not produce their export documents saying that the supplier had received back the consignment and they had no idea about the re-export.

Appellant Contention:-Shri Anil Balani, ld. counsel for the appellant submits that as per their knowledge goods have been re-exported and they have received back money, i.e., value of the goods from their foreign supplier therefore, they were not supposed to pay duty on the said goods. However appellant paid the duty along with interest oversightly therefore, the said amount should be refunded to the appellant. As regard the re-export of the goods he submits that the foreign supplier have confirmed the receipt of the goods and they have also returned the value of the goods, on this basis appellant is claiming that the goods have been re-exported however they do not have any evidence for the same.

Respondent Contention:-Shri D.K. Sinha, ld. Asstt. Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that refund was rejected on the ground that necessary documents were not submitted mainly proof of export of the goods therefore, the appellant is not entitled for the refund. In absence of documentary evidence both the lower authorities have rightly rejected the claim, hence order does not require any interference, appeal may be dismissed.

Reasoning of Judgment:-The submissions made by both sides are considered and on perusal of the records, it is found that Refund claim of the appellant is filed in respect of the customs duty and interest paid towards bill of entry which was showing pending since 2007. Though no evidence was produced regarding the export of the goods but at the same time, it is clearly observed by the lower authority in the impugned order the goods have not been delivered to the appellant, i.e., after payment of duty in 2003 against bill of entry 159950, dated 13-6-2007, out of charge order was not given. This clearly shows that irrespective of the position of re-export the fact is not under dispute that the goods in respect of which customs duty and interest was paid has not been delivered to the appellant. Tribunal is also of the view that if the bill of entry has been filed and the customs duty has been paid then customs department should deliver the goods to the importer and in such case no refund shall arise. However in the present case, it has been informed by the assessment group of Customs that no out of charge was given to the said bill of entry and it also informed that no re-export permission was given to the importer, therefore, either delivery of the goods should be given to the appellant and if department is failed to give delivery of the goods by not giving out of charge then appellant shall be entitled for the refund of the duty and interest paid by them. Tribunal therefore, direct the adjudicating authority either to give out of charge order and deliver the goods to the appellant or if it is not possible, refund should be granted to the appellant in accordance with the law.

In view of the above findings, the appeal is allowed.

Decision:-Appealallowed.

Comment:-The crux of the case is that if the goods in respect of which customs duty and interest was paid has not been delivered to the appellant, refund should be allowed to the appellant. The revenue authorities can either claim customs duty or possession of imported goods. They cannot deny refund of custom duty when the goods imported have been re-exported and have not been provided to the importer.

Prepared by:- Bharat Chouhan

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PJ/Case Law /2016-17/3268

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