The custom duty prevalent on the date of order of permitting clearance will be payable.

PJ/Case Laws/2012-13/1264

Case:-COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX-BBSR-I V/S KASHVI POWER AND STEEL P LTD

Citation: - 2012-TIOL-1277-CESTAT-KOL

Brief Facts:- The present appeal was filed by the appellant-revenue for seeking stay for the operation of Order-in-Appeal No. 01-02/Cus/BBSR-I/2012 dated 17.0.1.2012, whereby the ld. Commissioner (Appeals) has upheld the refund of export duty paid by the respondent-assessee.

Appellant’s contention:- The appellant-revenue contended that the let export was on 25.2.2011 and the goods were not loaded in the vessel. They submit that the rate of export duty was enhanced from 5% to 20%. The contention is that consequent upon this change of rate of duty, shipping bill was reassessed to duty and the duty was paid by the respondent. Further their contention is that Section 16 of Customs Act, 1962 provides that the relevant date of determination of rate of duty for export is loading of goods. Section 26 of the Customs Act, 1962, provides for grant of refund of export duty and the provision has not been complied with in this case. Therefore, the respondents are not entitled for refund of the export duty. They relies on the Tribunal's decision in the case of Gujarat Co-op. Milk Marketing Federation Ltd. V/s. CC, Ahmedabad reported in 2007 (220) ELT 914 (Tri.-Ahmd.) = (2007-TIOL-1625-CESTAT-AHM). They contended that the issue relating to unjust enrichment has also not been examined in this case.

Respondent’s Contention:-The respondent submit that the order permitting clearance and loading of the goods was dated 25.2.2011 and the rate of duty applicable on that date was 5% and they were directed by the Department to pay duty enhanced w.e.f. 1.3.2011, which they have paid under protest. They contended that Section 26 of the Customs Act, 1962 is not applicable in their case, since it is not a case for return or re-import of the goods. Further Section 27 of the Customs Act, 1962, does not make any distinction for refund in case of export or import. It was further submitted that let export was given on 25.2.2011 and they have accordingly paid the duty applicable on the said date. In support of their contention, they placed reliance on the decision of the Hon'ble Bombay High Court in the case of Prima Mineral Exports Pvt. Ltd. Vs. Union of India - 2010 (257) ELT 414 (Bom.) wherein it was held that Let Export Order is made for unloading of the goods for exportation in accordance with law under Section 51 of the said Act.

Reasoning of Judgment: - The Hon’ble CESTAT held that as per Section 16 of the Customs Act, 1962, the rate of duty applicable shall be with reference to the date on which proper officer makes order permitting clearance and loading of the goods for exportation in accordance with Section 51 of the said Act. Undisputedly, the order was given on 25.2.11 under Section 16 of the Customs Act, 1962. The Hon'ble Bombay High Court in the case of Prima Mineral Exports Pvt. Ltd. has taken a similar view. In these circumstances, they do not find any merit in the stay application filed by the Revenue.

Decision: - stay not granted.

Comment:- This decision has clearly underlined the rule that custom duty is payable on rate applicable on the date of order of clearance by custom authorities and not on the date of receipt of goods or on the date of filing of Bill of entry.

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PJ/Case Laws/2012-13/1264

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