2014 (2) TMI 975 - AT - Customs

Rejection of refund claim - pilferage - Reassessment of bills of entry not done - Held that - in the Bill of Entry it is mentioned that out of charge was given on 28.04.2006. The same cannot be disputed. - The claim that the pilferage was found after out of charge was given without presenting or bringing any evidence on record is not sustainable - Board s Circular No. 58/96-Cus has clarified that when pilferage was found during the course of examination before the charge was given, the assessee is entitled for refund claim of duty paid on shortage of the goods. Therefore, the appellants are entitled for refund claim. - the appellants have paid excess duty on the goods received by them, therefore, they are entitled for refund claim. - adjudication authority directed to implement this direction within 30 days of receipt of this order - Decided in favour of assessee.

Summary

Issues:
Claim for refund of excess duty paid on pilfered goods rejected by lower authorities.

Analysis:
The appellant imported a consignment of Crude Iodine, but upon examination, it was discovered that 96 drums were missing. A FIR was lodged, and an investigation confirmed the pilferage. Subsequently, 16 drums were recovered. The appellant filed a refund claim for the excess duty paid on the missing goods. Both lower authorities rejected the claim, citing non-reassessment of the Bill of Entry. The appellant contended that they were entitled to a refund under Section 13 of the Customs Act, 1962, as they paid excess duty on goods not received. The appellant relied on a Board's Circular to support their claim. The respondent argued that the timing of pilferage discovery in relation to the out of charge status needed examination.

Upon review, the Tribunal found that the out of charge was given before the pilferage was discovered, undermining the respondent's argument. Referring to the Board's Circular, it clarified that refund claims are permissible when pilferage is identified before the out of charge. Consequently, the Tribunal held that the appellant had indeed paid excess duty on the missing goods and was entitled to a refund. The impugned order was set aside, and the appeal was allowed with consequential relief. The adjudication authority was directed to implement the decision within 30 days of receipt.

This judgment highlights the importance of the timing of pilferage discovery in relation to the out of charge status in determining eligibility for a refund of excess duty paid on missing goods. The Tribunal's interpretation of Section 13 of the Customs Act, 1962, and reliance on the Board's Circular supported the appellant's claim for a refund. The decision serves as a precedent for similar cases where goods are found missing post customs clearance, emphasizing the rights of importers to seek redress for excess duty payments on pilfered items.