2007 (5) TMI 161 - AT - Customs

Provisional duty deposited on goods after seizure with the allegation of illegal import Comm.(A) has set aside the demand Date of deposit would be treated as order-in-original Refund is allowed Matter remanded

Summary

Issues:
1. Whether the payment made at the time of provisional release should be treated as duty paid or deposit.
2. How the order of the Commissioner (Appeals) impacts the duty liability.
3. Whether the appellant is entitled to a refund and consequential relief.

Analysis:

Issue 1: Payment as Duty or Deposit
The appellant argued that the amount paid at the time of provisional release was a deposit and should be treated as such until the order of the original authority appropriated it. They contended that since the Commissioner (Appeals) held that the duty was not payable under Section 28(1), the amount should be considered a deposit eligible for refund. The Tribunal agreed, emphasizing that the payment was towards administrative provisional release and deserved to be treated as a deposit until appropriated by the original authority.

Issue 2: Impact of Commissioner (Appeals) Order
The Tribunal noted that the Commissioner (Appeals) did not alter the confiscation order but only changed the duty liability amount. It clarified that Section 125 applies post-confiscation, which occurred on 8-9-2003. The goods had already been released to the appellant, and the duty liability differed based on the Commissioner (Appeals) order. The claim that the appellant needed to opt for release post the Commissioner (Appeals) order was deemed untenable.

Issue 3: Entitlement to Refund and Consequential Relief
Given that the goods were cleared and the amount adjusted towards duty liability as per the Commissioner (Appeals) order, the Tribunal ruled that the appellant should seek relief through a consequential refund based on the variance in duty payable between the original order and the appeal order. It concluded that the appellant was entitled to such relief as per the law and the Commissioner (Appeals) order.

In conclusion, the Tribunal set aside the Commissioner (Appeals) order and remanded the matter to the original authority to consider the consequential relief in accordance with the law, treating the date of the original order as the date of duty payment. The appeal was allowed by way of remand on these terms.