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Judgment
Heard both sides.
Rejection of refund application filed by the appellant under Section 27 of the Customs Act, 1962 is the subject matter of present dispute. In support of filing of the refund application, the appellant has contended that duty has been wrongly paid in respect of Bill of Entry No. 787592 dated 22.10.2002. It has further been stated that the appropriate duty liability in respect of the consignments imported during the period March, 2014 in respect of the Bill of Entry No. 4842735 dated 08.03.2014 had already been paid by the appellant through proper challan. In response to the refund application filed by the appellant, the original authority vide the adjudication order dated 27.03.2007 has held that the requisite documents in support of payment of excess amount of duty were not submitted by the importer/appellant and accordingly, had held that the claim cannot be entertained and hence, rejected the refund application. The learned Commissioner (Appeals) vide the impugned order dated 17.5.2018 has also upheld the adjudication order in support of rejection of the refund claim application.
The appellant had enclosed the documents, namely challan dated 18.03.2014, evidencing payment of duty amount in respect of the Bill of Entry No. 4812735 dated 08.03.2014; copy of the Bill of Entry No. 787592 dated 22.10.2002, Bank statements evidencing payment of the disputed duty amount, for which the subject refund applications were filed. Further, at the time of hearing of appeal, the learned Advocate has submitted the Order No.100/2019-20 dated 5.9.2019 passed by the CPIO in the O/o the Commissioner of Customs, stating that the Bill of Entry dated 22.08.2002 has not been given out of charge as per the available records. Referring to said order dated 5.9.2019, the learned Advocate for the appellant stated that since the goods have not been cleared for home consumption, the duty paid under the said Bill of Entry should be available as refund to the appellant.
I am convinced with the submissions made by the learned Advocate for the appellant that the goods have not been cleared or given out of charge in respect of Bill of Entry dated 22.08.2002 and as such, duty liability cannot be fastened on the goods covered therein. Thus, I am of the prima facie view that the duty paid in respect of such Bill of Entry should be available for the benefit of refund. However, since the sanction of refund requires proper examination of the documentary evidence regarding payment of duty, non-clearance of goods for home consumption as claimed by the appelant, unjust enrichment aspects etc., I am of the view that the factual matrix of the case should be examined at the original stage for proper appreciation regarding consideration of the refund claim filed by the appellant.
Therefore, by setting aside the impugned order, the appeal is allowed by way of remand to the original authority for proper fact finding with regard to entitlement of refund as claimed by the appellant. For the said purpose, the original authority should examine the documents available on record and to be submitted by the appellant. Further, the original authority should also examine the RTI order dated 05.09.2019, which is to the effect that the goods have not been given out of charge to the appellant. Needless to say, that before deciding the issue afresh, the original authority should grant reasonable opportunity of personal hearing to the appellant.
In the result, the appeal is allowed by way of remand.
(Dictated and pronounced in open court)