2015 (11) TMI 1080 - AT - Customs

Denial of refund claim - Project Import - Claim of concessional rate of duty - the appellant in being pressure to complete the project in time, deposited the duty and cleared the goods. Subsequently, the appellants were received the sanction and requirement etc., preferred the claim of refund for the excess duty paid - Held that - Commissioner (Appeals) failed to exercise jurisdiction against same. The learned Commissioner (Appeals) has only raised the doubt which are in the nature of summarize and has not brought out any finding on record, on which setting aside of the orders sanctioning refund can be justified. Therefore, the impugned order of the Commissioner (Appeals) is set aside. Accordingly, the appeal of the assessee is allowed and appeal of the Revenue is dismissed. It is also held that less charge memo dated 7.2.2005 is clearly time barred. - Decided in favour of assessee.

Summary

Issues:
1. Appeal against Order-in-Appeal No. 161/2005/MCH dated 11.4.2005.
2. Eligibility for concessional rate of duty under Project Import Scheme.
3. Reconstruction of Bills of Entry and acceptance of reconstructed Xerox copies.
4. Assessment and classification of goods under relevant Chapters.
5. Refund claim for excess duty paid.
6. Violation of principles of natural justice.
7. Setting aside of refund order by Commissioner (Appeals).
8. Disbursement of refund and subsequent review by Commissioner of Customs.
9. Cryptic and non-speaking order by Commissioner (Appeals).
10. Time-barred less charge memo under section 48.

Analysis:
1. The appeal was filed against Order-in-Appeal No. 161/2005/MCH dated 11.4.2005 passed by the Commissioner of Customs (Appeals), Mumbai. The appellant, M/s Dodsal Enterprises Pvt. Ltd., had been awarded a contract for laying gas pipelines and applied for registration under the Project Import Scheme to import goods at a concessional rate of duty.

2. The appellant provided documentary evidence supporting the eligibility for concessional duty, including certificates from relevant authorities. The Bills of Entry were finalized, and reconstructed Xerox copies were accepted as authentic documents. The completion and commissioning of the project were certified by M/s EIL and M/s IPCL.

3. Bills of Entry filed before Mumbai Custom House raised issues as they were not communicated by Kandla Custom House, leading to rejections and disputes over the assessment and classification of goods under different Chapters. The appellant claimed a refund for excess duty paid due to misclassification and subsequent clarification from the Ministry of Chemical & Fertilizers.

4. The Commissioner (Appeals) set aside the ex-parte order of refund, citing violation of principles of natural justice, lack of show-cause notice, and personal hearing. The matter was remanded for re-examination based on new evidence and directives from the Ministry of Industries.

5. The adjudicating authority later allowed the claim for concessional duty and sanctioned a refund to the appellant. However, the Commissioner of Customs (Import), Mumbai, reviewed the refund order, questioning the reopening of assessment and the finality of the decision due to the lack of appeal by the appellant.

6. The appellate tribunal found the Commissioner (Appeals) order to be cryptic and non-speaking, lacking detailed findings to justify setting aside the refund order. The tribunal allowed the appeal of the assessee, dismissed the appeal of the Revenue, and deemed the less charge memo issued as time-barred.

This detailed analysis of the judgment highlights the key issues, legal arguments, and decisions made by the authorities involved in the case.