2013 (1) TMI 104 - AT - Customs

Rejection of refund claim - Limitation of time aspect - DEPB credit utilized by the assessee for clearance of certain goods covered by the Bill of Entry dated 14.03.2011 - Held that - Out of Customs charge order under Section 47 was issued on 18.03.11, that the goods merely cleared for home consumption were not re-exported within 30 days prescribed under Section 26A (1) of the Act, that the same could not be re-exported even within a further period of three months, that the appellant even did not request the Commissioner of Customs for extension of time under the first proviso to the above provision. It is submitted that the shipping bill was filed for re-export on 10.06.11. As the appellant is requesting for an opportunity to put across to the Commissioner the circumstances in which they could not make an application at the appropriate stage for extension of time for re-export, the party can be given an opportunity to make a representation to the Commissioner. If they do so within seven days from the date of receipt of a certified copy of this order, the Commissioner of Customs concerned shall consider the same on merits and take a fair decision thereon after giving the party a reasonable opportunity of being personally heard.

Summary

Issues:
1. Refund claim under Section 26A of the Customs Act for DEPB credit utilized by the assessee.
2. Limitation of time aspect, merits of the case, and doctrine of unjust enrichment considered by the original authority.

Analysis:
1. The appeal was filed by the assessee against the appellate Commissioner's Order upholding the decision of the original authority on a refund claim. The refund was claimed under Section 26A of the Customs Act for an amount utilized as DEPB credit for clearance of goods covered by a specific Bill of Entry. The goods were re-exported within three months from the date of clearance, as required by the Customs Act. However, the party did not apply for an extension of time as authorized by the first proviso to Section 26A (1) of the Act. The original authority favored the assessee on the limitation of time aspect and the doctrine of unjust enrichment but ruled against them on the merits of the case. The Commissioner (Appeals) affirmed this decision, leading to the current appeal.

2. The Judicial Member analyzed the case and found no merit for the appellants based on the undisputed facts. The goods were not re-exported within the prescribed 30 days under Section 26A (1) of the Act, nor within the extended three-month period. Additionally, the appellant did not request an extension of time from the Commissioner of Customs as allowed by the first proviso. The rejection of the refund claim was deemed appropriate based on these facts. However, the appellants requested an opportunity to submit an ex-post facto extension of time application to the Commissioner, citing circumstances that prevented the initial request. The Judicial Member, considering that the refund claim was not time-barred or unjustly enriching, granted the party seven days to make a representation to the Commissioner for a fair decision. The Commissioner of Customs was directed to consider the representation on merits after providing a reasonable opportunity for the party to be heard, ensuring that the current order does not influence the final decision.

In conclusion, the appeal was disposed of with the direction for the party to represent their case to the Commissioner within the specified timeframe for a fair consideration of the circumstances leading to the delayed extension request.