By TIOL News Service

BANGALORE, DEC 13, 2012: THE appellant imported a consignment of 1000 units of 'heat detectors' valued at Rs.2,61,544/- and filed Bill of Entry No.236380 dated 30.8.2006. The Bill of Entry was cleared under RMS procedure and there was no examination of the goods. The goods cleared after payment of duty of Rs.96,119/-. CHA noticed that the number of heat conductors in the package was only 100 as against 1000 units and sought for refund of duty paid relating to 900 units not received vide letter dated 6.9.2006. The department vide letter dated 13.10.2006 informed the importer to file a refund claim in proper format enclosing all the relevant documents in support of the claim. The importer filed the claim in proper format along with relevant documents on 28.7.2007. The original authority rejected refund claim as hit by limitation by treating 27.8.2007 as the date of filing the refund claim. The Commissioner (Appeals) upheld the order of the original authority. Aggrieved by the above order, the appellants filed appeal before the Tribunal.

++ The Advocate of appellants submits that the CHA, who was authorised by the importer, had brought the discrepancy to the notice of the Assistant Commissioner and sought for refund claim. Subsequent filing of their claim in proper format was at the direction of the department and on this ground, refund claim should not have been rejected on the issue of time bar.

++ The Revenue Representative submitted that the refund applications are required to be filed along with relevant documents in proper format as prescribed under Customs Refund Application (Regulation 1995); that since such refund claim has been filed only after the expiry of six months, the claim was clearly time barred and that that once the goods have been cleared through Customs, subsequent shortage at customers' premises cannot be treated as a case of short landing of the goods. Also relied on the decision of the Tribunal in the case of Collector of Customs, Madras vs. Guindy Machine Tools Ltd. (2004-TIOL-513-CESTAT-MAD).

The Tribunal observed as –

“It is not in dispute that the original authority has accepted the short landing as seen from the relevant portion of the findings.

Further, I find that the other evidence produced indicates that 1000 units of heat detectors apparently weighed 157 Kgs/220 Kgs. Obviously, a consignment which weighed only 18 Kgs as declared in the Bill of Entry cannot be for 1000 units. The Bill of Entry clearly referred to the Air Waybill Number and the House Air Waybill from the Airline indicated the weight of consignment as 18 Kgs. It is also admitted that cargo arrival notice also mentioned the weight as 18 Kgs. In these circumstances, it is clearly a case of short landing of the goods inasmuch as instead of 1000 units of heat detectors only 100 units have been received.

In the peculiar facts and circumstances, the CHA who has been duly authorised by the importer has sought for refund vide letter dated 6.9.2006. This fact is not in dispute. Undoubtedly, the relevant documents have not been produced along with the claim dated 6.9.2006 and the refund claim was not in the proper format. Nevertheless, in the facts of the present case, it would be in the interest of justice to treat the letter dated 06.9.2006 as refund claim. After all, the whole amount had been deposited but the related goods have undisputedly not arrived in India”.

The Tribunal finally set aside the impugned order and allowed the appeal with consequential relief as per law.

(See 2012-TIOL-1843-CESTAT-BANG)