2006 (6) TMI 321 - AT - Customs

Summary

Issues:
Restoration of appeal after dismissal for non-prosecution.
Eligibility for benefit of Notification No. 53/97-Cus for refund of duty paid by mistake.
Requirement of certificate from Assistant Commissioner for clearance of goods without payment of duty for 100% EOU.

Analysis:
The judgment deals with an application for restoration of appeal filed against the Tribunal order dated 28-10-2005, which dismissed the appeal of the appellant for non-prosecution. The application for restoration was considered, and the appeal was restored for disposal. The relevant facts in consideration involve the appellant importing capital goods on payment of duty to a 100% EOU factory, later realizing the duty was not required to be paid and claiming a refund. The refund claim was rejected by the adjudicating authority and the Commissioner (Appeals).

The appellant argued that the duty payment was a mistake, and they were eligible for the benefit of Notification No. 53/97-Cus. They claimed to have filed the necessary D-3 declaration with the Central Excise authorities and entered the details in the statutory record for 100% EOU. On the other hand, the Departmental Representative contended that a specific procedure under Circular No. 14/98 had to be followed for clearances to 100% EOU, requiring a certificate from the Assistant Commissioner for duty-free removal of goods, which the appellant failed to provide.

After considering the submissions, the Tribunal found that the appellant did not produce the required certificate from the Assistant Commissioner, as mandated by the procedure for 100% EOU to obtain goods without payment of duty. Consequently, the appellant was deemed ineligible to avail the exemption under Notification No. 53/97. Therefore, the appeal was dismissed based on the failure to comply with the necessary procedural requirement for duty-free clearance of goods for 100% EOU.

In conclusion, the appeal for restoration after dismissal for non-prosecution was allowed, but the appeal on the eligibility for the benefit of Notification No. 53/97-Cus for refund of duty paid by mistake was dismissed due to the appellant's failure to provide the required certificate from the Assistant Commissioner for duty-free clearance of goods for 100% EOU, as per the prescribed procedure.