2008 (7) TMI 808 - AT - Customs

Summary

Issues:
1. Refund claim rejection on the ground of time bar.
2. Applicability of limitation in the case of abandoned goods under Section 23 of the Customs Act.
3. Relationship between the application under Section 23(2) of the Act and the refund claim.

Analysis:

1. The Appellant imported a consignment of LMS Scrap but later abandoned the goods under Section 23(2) of the Customs Act, 1962. The Customs Authorities found the consignment contained old and used tyres. The Commissioner of Customs confiscated the goods partly but did not impose any penalty. Subsequently, the Appellant filed a refund claim, which was rejected by the Adjudicating Authority and upheld by the Commissioner (Appeals) citing time bar as the reason.

2. The Appellant argued that since they applied for abandoning the goods under Section 23 of the Customs Act, the limitation should not apply. The Appellant relied on a previous Tribunal decision and contended that they are entitled to a refund as the Commissioner of Customs had already ruled in their favor. On the other hand, the Revenue representative reiterated that the refund claim was time-barred as it was filed after the duty deposit and the application under Section 23 of the Act.

3. The Tribunal, after considering both sides, noted that the Appellant abandoned the goods before the clearance for home consumption, which allows for remission of duty under Section 23(1) of the Act. The Tribunal highlighted that the application under Section 23(2) of the Act was still pending and that the refund claim could not be decided until the application's outcome. Referring to a previous case, the Tribunal stated that an application for remission of duty within six months can be treated as a claim for refund. Therefore, in this case, the refund claim was pending until the application under Section 23(2) was resolved.

In conclusion, the Tribunal set aside the impugned order and remanded the matter back to the Adjudicating Authority with a directive to first decide on the application under Section 23(2) of the Customs Act. Only after the application's decision, the refund claim application would be considered in accordance with the law. The appeal was allowed by way of remand, emphasizing the interconnection between the application under Section 23(2) and the refund claim.