By TIOL News Service:

MUMBAI, MAY 17, 2016: THE fact of the case is that the appellant had imported one box weighing 6.88 Kg having 200 pcs of 1GBDDR 2 SD RAM Modules from M/s Micro Semiconductor Asia Pvt. Ltd., Singapore vide B/E dated 13/06/2007. Goods were not cleared as per statement of the appellant inasmuch as goods were re-called back by the supplier who issued a credit memo dated 25/07/2007 by which value of the goods has been returned to the appellant.

Since the Bill of Entry was showing pending in ICEGATE for payment of customs duty amounting to Rs.1,83,723/- (duty of Rs.1,00,275 + interest of Rs.83,448/-) the appellant paid the same by mistake and oversight through online payment on 3/1/2013. Realizing their mistake, the appellant filed the refund claim on 11/01/2013 for the amount of Rs.1,83,723/-.

By a deficiency memo, the appellant was asked to submit all the import and export documents. Appellant vide their letter conveyed to the customs authority that the original copy of duplicate bill of entry dated 13/06/2007 was not available with them as no physical delivery of the goods were made to them by ACC, Sahar at any point of time commencing from filing of Bill of Entry till the payment was made and the copy of Bill of Entry had not been generated. The appellant did not produce export documents saying that the supplier had received back the consignment and they had no idea about the re-export.

The claim was rejected on account of non-submission of documents and the lower appellate authority upheld this order.

The appellant is before the CESTAT and submits that as per their knowledge goods have been re-exported and they have received back money and, therefore, were not supposed to pay duty on the said goods. As regards the re-export of the goods it is submitted that the foreign supplier have confirmed the receipt of the goods and apart from this they do not have any other evidence.

The AR justified the order of the lower authorities in rejecting the refund.

The Bench observed -

"6. Refund claim of the appellant is filed in respect of the customs duty and interest paid towards bill of entry which was showing pending since 2007. Though no evidence was produced regarding the export of the goods but at the same time it is clearly observed by the lower authority in the impugned order the goods have not been delivered to the appellant i.e. after payment of duty in 2003 against bill of entry 1599950 dated 13/06/2007, out of charge order was not given. This clearly shows that irrespective of the position of re-export the fact is not under dispute that the goods in respect of which customs duty and interest was paid has not been delivered to the appellant. I am also of the view that if the bill of entry has been filed and the customs duty has been paid then custom department should deliver the goods to the importer and in such case no refund shall arise. However, in the present case, it has been informed by the assessment group of Customs that no out of charge was given to the said bill of entry and it is also informed that no re-export permission was given to the importer, therefore, either delivery of the goods should be given to the appellant and if department is failed to give delivery of the goods by not giving out of charge then appellant shall be entitled for the refund of the duty and interest paid by them. I, therefore, direct the Adjudicating authority either to give out of charge order and deliver the goods to the appellant or if it is not possible, refund should be granted to the appellant in accordance with the law …"

The Appeal was allowed by way of remand.

(See 2016-TIOL-1164-CESTAT-MUM)