2014 (12) TMI 230 - HC - Customs

Appeal before Commissioner (appeals) - period of limitation - Rejection of the refund claim - commodity imported by the petitioner was not exigible to customs duty - Maintainability of appeal u/s 128 - Whether the petitioner had actually approached the competent authority for getting the assessment order/Bill of Entry modified and what transpired thereafter - Held that - date of service of the impugned order has been clearly mentioned by the petitioner against column No. 4 , that the same was served to the petitioner on 23.03.2012. The appeal was preferred on 8.5.2012, which is well within the time prescribed under the statute. The same was rejected by the appellate authority stating that Section 128 was not attracted. - The appeal preferred by the petitioner against Ext.P1 is well within time and as such, it ought to have been considered, passing appropriate orders on merits. Commissioner directed to reconsider the matter with regard to the claim for refund preferred by the petitioner passing appropriate orders in accordance with law. - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
Challenge to rejection of refund claim for excess deposit of customs duty.

Analysis:
1. The petitioner imported goods and deposited customs duty amounting to 10,31,659/-. Subsequently, realizing the imported commodity was not liable for duty, a refund application (Ext.P5) was filed, which was rejected by the Assistant Commissioner Customs (Refund) (Ext.P6) for not having the assessment order modified by a procedure known to law.

2. The petitioner then filed an appeal under Section 128 of the Customs Act, 1962 (Ext.P7) before the 3rd respondent, which was rejected (Ext.P9) stating Section 128 was not applicable for claiming a refund. The petitioner made further representations (Ext.P10, Ext.P11) pointing out the lack of opportunity for a hearing and the necessity of an appeal against an order passed by specific authorities.

3. The 3rd respondent rejected subsequent representations (Ext.P13, Ext.P14, Ext.P15) stating the appeal was belated and not maintainable under Section 128. The respondent argued that a refund application is not a substitute for an appeal and that the Bill of Entry could have been modified without the need for a refund application.

4. The Court noted that the petitioner had approached the competent authority for modifying the assessment order/Bill of Entry and had filed the appeal within the prescribed time. The rejection of the appeal under Section 128 was found to be incorrect, and the petitioner was not given a hearing before the orders were passed.

5. The Court emphasized the provisions of Section 128 of the Customs Act, which allow for appeals within a specified period. The rejection of the appeal and subsequent representations lacked consistency, and the petitioner was not afforded a hearing before the decisions were made.

6. Ultimately, the Court set aside the impugned orders and directed the 3rd respondent to reconsider the refund claim, passing appropriate orders after giving the petitioner an opportunity for a hearing. The decision was to be finalized within two months from the date of the judgment.

This detailed analysis of the judgment highlights the procedural and legal aspects involved in challenging the rejection of a refund claim for excess deposit of customs duty, emphasizing the importance of following due process and providing opportunities for a fair hearing in such matters.