Refund of SAD - Part clearances of hazardous bulk cargo allowed by Customs and final out-of-charge given for entire consignment - Commissioner (A) has gone on tangent and held that appellant could not have sold goods which were not in his possession - Refund admissible: CESTAT
By TIOL News Service
MUMBAI, APR 03, 2015: THE appellant imported Styrene Monomer which is a bulk commodity and hazardous.
Under Public Notice No. 55/2004 dt. 31.8.2004, the Commissioner of Customs (Export), Mumbai allowed part clearance of bulk cargo by observance of the procedure under the said Public Notice.
Para 8 of the Public Notice states that where the importers seek part clearances of the bulk cargo, the proper officer in-charge of examination of bulk cargo, after examination, shall record the examination report on the reverse of original customs copy of the Bill of Entry. It further states that it will be the responsibility of the proper officer to record the examination report in respect of the total quantity cleared and thereafter final Out-of-Charge shall be given for the entire consignment in the system. It appears that this facility was allowed for clearance of bulk cargo which is hazardous.
The appellant sold the goods under invoices as and when the part clearances of the goods was allowed in terms of the said Public Notice.
Thereafter, the appellant filed a claim for refund of the SAD paid in terms of Notification 102/2007-Cus., dated 14.09.2007.
Almost Always on the look-out for denial of 'refund', the Customs authorities, perhaps unaware of the contents of the Public Notice referred, objected to the grant of refund on the ground - that the date of invoices under which the part clearances were sold are prior to the date of final Out-of-Charge given for the entire consignment, in the EDI system .
The Commissioner(A) too sided with the order of the adjudicating authority and, therefore, the appellant is before the CESTAT.
Not the one to be impressed with the arguments of the Revenue in the subject matter, the Bench observed -
"4. In this case, it is clear from the Public Notice that part clearances have been permitted in respect of the bulk cargo. The examination reports in respect of such par clearances are also recorded on the bills of entry. The purpose of allowing part clearances is obviously to give part delivery to the appellant. There can be no other interpretation of the word "part clearances" otherwise the whole procedure of giving part clearances in terms of the Public Notice would become otiose. The finding of Commissioner (Appeals) that goods do not come in the possession of the importer before the Out-of-Charge is given is totally fallacious and contradictory to the Public Notice issued by the Commissioner himself. The Commissioner (Appeals) has gone on a tangent and held that the appellant could not have sold the goods which were not in his possession. It is clear from the Public Notice that the goods will be in the possession of the appellant once the part clearance is allowed. The appellant have produced copies of invoices showing the sale of the goods to the buyers. Revenue has not shown that these goods are not the same in respect of which part clearance was given. Therefore, it would be wrong and totally unjust to state that the goods could not have been sold before the date of final Out-of-Charge. The date of final Out-of-Charge only reflects the date when the complete consignment has been cleared by Customs. It does not mean that the part clearances were not made physically before the date of final Out-of-Charge recorded on the Bill of Entry."
Holding that the refund of SAD in terms of notification No. 102/2007-Cus is admissible to the appellant, the appeals were allowed with consequential relief.
(See 2015-TIOL-606-CESTAT-MUM)
