2011 (6) TMI 612 - AT - Customs

Whether it was necessary for the Appellant to produce the certificates at the time of filing of the Bill of Entry or whether it was sufficient if the certificates produced within a short time after import Held that - Appellant, at the time of import itself, staked his claim for exemption under Notification and there was thus a challenge to the assessment made. However during the relevant period the practice was to take the matter forward by filing a refund claim producing the required certificate. The Appellant has followed this procedure. Since there was a claim for the exemption ab initio and the claim was not finalised through an adjudication proceeding, refund claim cannot be denied. Appeal are allowed

Summary

Issues:
Import of Gas analyzer with accessories, Claim for exemption under Notification 70/81-Cus., Requirement of Not Manufactured in India Certificate (NMIC) and Duty Exemption Certificate (DEC), Rejection of refund claim by Assistant Commissioner, Appeal to Commissioner (Appeals) rejected, Dismissal of Appeal by Tribunal due to delay in obtaining clearance, Restoration of Appeal, Necessity of producing certificates at the time of filing Bill of Entry, Applicability of previous Tribunal decisions, Challenge to assessment, Procedure for claiming exemption, Unjust enrichment.

Analysis:
The appellant imported a Gas analyzer with accessories and claimed exemption under Notification 70/81-Cus., which required producing two certificates: Not Manufactured in India Certificate (NMIC) and Duty Exemption Certificate (DEC). The appellant had DEC but not NMIC at the time of filing the Bill of Entry. The Custom House Agent endorsed that the certificates would be produced within four months. The Assistant Commissioner rejected the refund claim stating that the required certificates were not produced at the time of clearance. The Commissioner (Appeals) upheld the rejection, emphasizing that the certificates must be produced at the time of clearance or with permission from the Assistant Collector.

The Tribunal dismissed the appeal due to a delay in obtaining clearance from the Committee of Secretaries on Disputes as directed by the Supreme Court. After receiving the clearance certificate, the appellant filed for restoration of the appeal, facing delays due to misplaced files. Eventually, the Tribunal allowed the restoration and decided to hear the appeal after more than two decades. The main issue was whether the certificates had to be produced at the time of filing the Bill of Entry or shortly after import. Previous Tribunal decisions were cited to support the argument that producing the certificates within a reasonable time after import sufficed.

The Tribunal found that the appellant's claim for exemption was made at the time of import, and the refund claim process followed the prevailing practice during that period. The Tribunal distinguished the case from a previous Supreme Court decision, ruling that the refund claim could not be denied based on that decision. Consequently, the adjudication order and Order-in-Appeal were set aside, determining that duty was not payable on the imported consignment. The matter was remitted to the adjudicating authority to assess unjust enrichment and decide on the refund claim accordingly. The Restoration Application and the Appeal were allowed based on these findings.