2010 (11) TMI 354 - AT - Customs

Refund - Bar of limitation - Reassessment of import - The Bill of Entry was filed, and assessed on the basis of the declarations made by the importer and on the basis of the invoice issued - The Hon ble Delhi High Court in the case of United News of India v. Union of India reported in 2004 (2004 (1) TMI 90 - HIGH COURT OF DELHI) held that payments in advance of import without assessment is not relatable to taxable event of importation and cannot be valid duty - By applying the ratio of the above decisions and in the fact of the instant case where the short landing of the goods is not being disputed it has to be held that appellant is entitled to the refund of excess deposit of ₹ 6,01,721 - Accordingly the appeal is allowed

Summary

Issues:
1. Import of goods not matching invoice contents.
2. Refund claim rejected on grounds of limitation and non-challenge of assessment orders.

Analysis:
1. The appellant imported goods that did not match the contents of the invoice, leading to the discovery of soil, mud, dust, and rocks instead of the ordered scrap. A physical examination and Chartered Engineer's report confirmed the discrepancy, with only a portion of the import being actual scrap.

2. The appellant had already paid the duty in full at the time of assessment but later filed a refund claim for the excess deposit made. However, the lower authorities rejected the claim citing the lapse of the prescribed six-month period and the appellant's failure to challenge the assessment orders. The rejection was based on the grounds of limitation and non-challenge of assessment orders.

3. The Tribunal found that the excess duty deposit made by the appellant, amounting to Rs. 6,01,721/-, was not liable to be paid as the goods for which the duty was deposited were never imported. The Tribunal disagreed with the Revenue's contention that the assessment order needed to be challenged for a refund, emphasizing that no dispute existed between the Revenue and the importer regarding the non-imported goods.

4. Citing legal precedents, including judgments from various High Courts and Tribunals, the Tribunal concluded that the excess deposit could not be considered as duty since no goods were imported by the appellant. The Tribunal also highlighted that the plea of time-bar was not applicable in this case, as the amount deposited was not attributable to the imported goods but was more in the nature of a deposit pending completion of import.

5. Relying on previous decisions and considering the undisputed nature of the case where the goods were not fully imported as per the invoice, the Tribunal allowed the appeal, setting aside the impugned orders and granting the appellant the refund of the excess deposit of Rs. 6,01,721/- with consequential relief. The judgment emphasized the entitlement of the importer to a refund in cases of short landing of goods, even if the assessment order was not challenged.