Whether exporter can file the refund in respect of goods exported on the ground that they had paid the duty on the basis of provisional assessment?

PJ/CASE LAW/2016-17/3084

Case:- VEDANTA LTD. Versus COMMISSIONER OF CUSTOMS (PORT)

Citation:- 2016 (332) E.L.T. 284 (Cal.)

Brief Facts:-Petitioner exporting goods under self-assessed shipping bills after payment of export duty, filing refund claim on ground that entire quantity of goods not exported. The Petitioner’s contention that goods were assessed provisionally, not acceptable in view of declaration on shipping bill to the truth and correctness of particulars therein. The department deny the refund and finds that seeking refund on this ground not justified. This application has been filed for admitting the appeal under Section 130of the Customs Act, 1962 preferred from the order passed by the Tribunal in Customs Appeal on the substantial questions of law as formulated in Paragraph 34 of this application.

Appellant’s Contention:- The Petitioner submits that as the entire quantity of goods could not be exported for circumstances beyond control, they are entitled to refund of the duty paid under the Customs Act. Relying on the documents annexed to the Paper Book II filed in Court, submission is since the goods were assessed provisionally and not finally and duty paid was in the nature of advance deposited, the prayer for refund cannot be within the scope and ambit of refund of duty. Reliance has been placed on the judgments in I.C.I. India Ltd. v. Collector of Customs : 1992 (60)E.L.T.529 (Cal.), Board of Trustees of the Port of Mormugao v. Union of India : 1993 (68)E.L.T.39 (Bom.) and United News of India v. Union of India : 2004 (168)E.L.T.442 (Del.) in support of his submission.

Respondent’s Contention:-The Revenue supporting the order passed by the Tribunal submits that since the appellant had filed the Bill of Entry declaring that the particulars given therein were true and correct and was a self-assessed shipping bill and on the basis of the said bill, duty was paid and, accordingly, shipment of 25,000 metric tons was allowed and the goods were exported, the appellant cannot, after 6½ months, seek refund of duty. Submission is the judgments relied on by the appellant are distinguishable as those deal with cases of import.

Reasoning of judgment:-The High Court heard both the parties and finds that it is evident from the shipping bills annexed to Paper Book II that the appellant had filed the shipping bill declaring “that all particulars given herein are true and correct” and thus the goods were self-assessed. On the basis of the said bill duty was paid, shipments were allowed and the goods were exported. Therefore, as on the basis of the declaration, duty was paid by the appellant, the argument that the goods were provisionally assessed and the appellant is entitled to refund, is without substance. Moreover refund of duty was sought for after 6½ months. The judgments in I.C.I. India Ltd. (supra), Board of Trustees of the Port of Mormugao (supra) and United News of India (supra) are cases regarding import and not export. Thus, no substantial question of law arises. Hence, the application and appeal are dismissed.

Decision:- The application and appeal are dismissed

Comments:- The crux of this case is that the High Court finds that the argument of appellant that the goods were provisionally assessed and the appellant is entitled to refund, is without substance and judgments cited by the appellants are also regarding import not export. Hence, High court rightly dismissed the appeal.

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PJ/CASE LAW/2016-17/3084

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