Whether limitation time for filing refund claim applicable for refund of import duty paid on mis-declared goods ordered for re-export?

PJ/Case Law/2013-14/1934

Case:- WILHELM TEXTILE INDIA Vs COMMISSIONER OF C. EX., NEW DELHI

Citation:- 2013 (295) E.L.T. 309 (Tri. - Del.)

Brief facts:- M/s. Wilhelm Textiles India Pvt. Ltd. (hereinafter referred to as Appellant) had filed this appeal against rejection of their refund claim by the lower authority. The brief facts of the case were that appellant filed the said refund claim on 21-9-2011 along with the requisite documents i.e. Bill of Entry No. 864954, dated 28-5-2010, TR-6 Challan dated 1-6-2010, along with copy of order-in-original dated 26-8-2010 passed by Additional Commissioner of Customs. Refund claim was rejected by original authority as time barred. The appellant filed an appeal before the Commissioner (Appeals) but they also rejected their appeal. Hence the present appeal.

Appellant’s contentions:-The ld. Counsel appearing for the appellants submitted that in the present case, the goods were not cleared out of Custom charge but were re-exported. Therefore the amount of Rs. 3,26,954/- paid by them was the deposit and as such the limitation under Section 27 of the Customs Act, would not be applicable. He also relied on decision of the Tribunal reported in 2006 (205)E.L.T.689 (Tri.-Kolkata)in case of Commissioner of Customs v. Banmore Electricals Pvt. Ltd. and Natraj and Venkat Associates v. Assistant Commissioner of Service Tax, Chennai reported in 2010 (249)E.L.T.337 (Mad.).

Respondent’s contentions:- The ld. Authorised Representative appearing for the Revenue submitted that in this case Bill of Entry was filed by the appellant and thereafter assessment was done, Additional Commissioner of Customs had passed the order dated 26-8-2010 and appellant had sufficient time to file the claim within one year from date of payment of duty. Since the amount was paid as duty, the provisions of Section 27 were squarely applicable to the present case.

Reasons of judgment:- After hearing both sides the Hon’ble judge found that the issue involved in the present case whether provision of Section 27 of Customs Act, were applicable. In this case refund was filed by the appellant on 21-9-2011. The Hon’ble judge found that the appellant being importer filed Bill of Entry No. 864954 dated 28-5-2010. Since the goods were found mis-declared, case was adjudicated by the Additional Commissioner by the order-in-original 26-8-2010. Thereafter goods were ordered to be re-exported to the original supplier. The amount of Rs. 3,26,954/- was paid by the importer as duty against the Bill of Entry in question. According to Hon’ble judge since amount was paid as duty to Custom by the importer, the provision of Section 27 of the Customs Act, were applicable to the present case. Since the duty was paid on 1-6-2010 and refund was filed on 26-9-2011 case was hit by the time limitation as provided under the Customs Act. Accordingly the Commissioner (Appeals) had rightly rejected their appeal on the ground of time-bar. The case laws cited by the appellant were not applicable to the present case as facts in these cases were distinguishable from the present case.

Decision:- Appeal was rejected.

Comment:- The essence of this case is that if goods are found to be mis-declared & adjudicating authority has ordered goods to be re-exported to the original supplier, then the amount paid by the importer would be treated as customs duty and would be governed by the limitation provisions of Section 27 of the Customs Act.

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PJ/Case Law/2013-14/1934

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