2015 (4) TMI 449 - AT - Customs

Denial of refund claim - SAD - refund was rejected on the ground that the appellant could not have sold the goods before the Out of Charge was given - Held that - it is clear from the Public Notice that part clearances have been permitted in respect of the bulk cargo. The examination reports in respect of such par clearances are also recorded on the bills of entry. The purpose of allowing part clearances is obviously to give part delivery to the appellant. The finding of Commissioner (Appeals) that goods do not come in the possession of the importer before the Out-of-Charge is given is totally fallacious and contradictory to the Public Notice issued by the Commissioner himself. The Commissioner (Appeals) has gone on a tangent and held that the appellant could not have sold the goods which were not in his possession. It is clear from the Public Notice that the goods will be in the possession of the appellant once the part clearance is allowed. The appellant have produced copies of invoices showing the sale of the goods to the buyers. Revenue has not shown that these goods are not the same in respect of which part clearance was given. Therefore, it would be wrong and totally unjust to state that the goods could not have been sold before the date of final Out-of-Charge. The date of final Out-of-Charge only reflects the date when the complete consignment has been cleared by Customs. It does not mean that the part clearances were not made physically before the date of final Out-of-Charge recorded on the Bill of Entry. - Refund is admissible - Decided in favour of assessee.

Summary

Issues:
Appeal against rejection of refund claims for SAD under Notification No. 102/2007 due to selling goods before final Out-of-Charge given for entire consignment.

Analysis:
The appellant imported a hazardous bulk commodity, Styrene Monomer, and sought part clearances under Public Notice No. 55/2004. The Public Notice allowed part clearances for hazardous bulk cargo, with examination reports to be recorded on the Bill of Entry. The appellant sold goods under invoices upon receiving part clearances. The Revenue objected to refunding SAD, claiming goods were sold before final Out-of-Charge. The Commissioner (Appeals) upheld the rejection based on this ground.

The Tribunal noted that part clearances were allowed to provide partial delivery to the appellant, as per the Public Notice. The Commissioner's finding that goods were not in the appellant's possession before Out-of-Charge was deemed fallacious. The Public Notice clearly indicated possession upon part clearances. Invoices presented by the appellant showed sales of goods, with no evidence from Revenue that these were not part-cleared goods. Therefore, the assertion that goods were sold before final Out-of-Charge was deemed incorrect. The date of final Out-of-Charge signified complete consignment clearance, not the physical timing of part clearances.

Consequently, the Tribunal held the SAD refund under Notification No. 102/2007 to be permissible. The appeals were allowed, granting consequential relief as per the law.