Whether refund admissible if no request made to Commissioner for extension of time for re-exportation?

PJ/Case Laws/2012-13/1526

Case:- SHRI RENUGA TEXTILE LTD. Versus COMMISSIONER OF CUSTOMS, TUTICORIN

Citation:-2013(289) E.L.T.479 (Tri.- Chennai)

Brief Facts:-This appeal filed by the assessee is directed against the appellate Commissioner’s Order upholding the decision of original authority on a refund claim filed by them. Refund was claimed of an amount of Rs. 1,10,692/- under Section 26A of Custom Act, which was the DEPB credit utilized by the assessee for clearance of the goods covered by a Bill of Entry, dated 14-3-2011. The clearance of the goods was affected under order dated 18-3-2011 passed by the Customs officer. Assessee wanted to re-export the goods, for which a shipping bill was filed on 10-6-2011. The proper officer issued ‘let export’ order on 18-6-2011 and accordingly, the goods were exported. Subsequently, the party filed the aforesaid refund claim under Section 26A of the Act, as per which any duty paid on clearance of any imported goods for home consumption shall be refunded to the person by whom or on whose behalf the duty was paid if the goods are exported in such manner as may be prescribed and within a period not exceeding 30 days from the date on which the proper officer makes an order for clearance of the imported goods for home consumption under Section 47. The first proviso to the above provision of the Customs Act authorizes the Commissioner to extend the time for export up to three months upon sufficient cause being shown by the exporter. In the instant case, it is not in dispute that the goods were re-exported within three months from 18-3-2011 (the date on which the proper officer of Customs issued order under Section 47 of the Act for clearance of the goods for home consumption). It is also not in dispute that the party did not apply to the Commissioner for extension of time under the first proviso to Section 26A(1) of the Act. Strictly speaking, this is sufficient ground for rejecting the refund claim.
From the records of this case, it appears that the original authority considered the following three issues:-
(a) Limitation of time aspect;
(b) Merits of the case;
(c) Doctrine of unjust enrichment.

It held in favour of the assessee on the first and third issues and held against them on the second issue, after noting that the goods had been re-exported after 30 days from 18-3-11. This decision of the Dy. Commissioner has been affirmed by the Commissioner (Appeals). Hence the present appeal of the assessee.

Reasoning of Judgment:-We have considered the submission from both sides and perused the record, we examine that have found no case for the appellant on merits. The undisputed facts are that the out of-Customs-charge order under Section 47 was issued on 18-3-2011; that the goods cleared for home consumption were not re-exported within 30 days prescribed under Section 26A(1) of the Act; that the same could not be re-exported even within a further period of three months; that the appellant even did not request the Commissioner of Customs for extension of time under the first proviso to the above provision. It is submitted that the shipping bill was filed for re-export on 10-6-2011. But LEO was issued on 18-6-2011 only. On these facts, the rejection of refund claim cannot be faulted. At this stage, the learned Counsel for the appellant submits that, given a reasonable opportunity, application for 'ex- post facto' extension of time will be filed with the Commissioner of Customs. It is prayed that, in the interest of justice, a direction be issued for consideration of such plea on merits. In other words, the appellant is requesting for an opportunity to put across to the Commissioner the circumstances in which they could not make an application at the appropriate stage for extension of time for re-export. Tribunal is of the view that, as the refund claim is neither barred by limitation nor by unjust enrichment, the party can be given an opportunity to make a representation to the Commissioner. If they do so within seven days from the date of receipt of a certified copy of this order, the Commissioner of Customs concerned shall consider the same on merits and take a fair decision thereon after giving the party a reasonable opportunity of being personally heard. Tribunal also stated that anything contained in this order shall not influence the Commissioner while taking a decision on merits.

Decision:- The appeal is disposed of in the above terms.

Comment:-The crux of this case is that when the refund claim filed by the assessee was within time and there is no unjust enrichment, the assessee should be given the opportunity to rectify the curable deficiency committed on his part so as to claim the genuinely admissible refund of duty. Non filing of request to extend the time for re-exportation to 3 months when goods re-exported within 3 months cannot be taken as ground for rejecting the refund claim.

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PJ/Case Laws/2012-13/1526

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