2009 (2) TMI 168 - AT - Customs

Refund Claim Short Landing of goods Period of limitation - , it was found that one pallet which was manifested in the IGM and for which the appellant filed Bill of entry was not available - The appellant filed refund claim dated 2-4-2007 of the amount paid on 26-8-2006 and the claim was rejected on the ground that the same has been filed after six months from the date of payment of duty on 26-8-2006. This order has been upheld by the Commissioner (Appeals). held that - , the petitioner was requited to furnish short landing certificate , which is dated 11-6-1974. Obviously, before that date, the petitioner could not have submitted his application. Therefore, considering this date, it cannot be said that the application of the petitioner was barred by limitation in view of Section 27(4) of the Act. refund can not be rejected.

Summary

Issues:
1. Refund claim filed after six months from the date of payment of duty.
2. Treatment of amount paid before examination of goods as a deposit.
3. Application of time-bar under Section 27 of the Customs Act.
4. Interpretation of the second appraisement system in cases of short landing.

Analysis:
1. The appellant filed a refund claim after six months from the date of payment of duty, which was rejected by the Commissioner (Appeals) on the ground of being time-barred. The appellant argued that the amount paid before examination of goods should be considered a deposit as the goods were not available for assessment. The learned Consultant relied on a decision of the Hon'ble High Court of Delhi in support of their argument.

2. The Department assessed the bill of entry finally on a later date after finding out the reasons for short landing, and the available goods were handed over to the appellant. The appellant contended that the entire amount deposited was not towards any duty and should be refunded unconditionally. The Tribunal noted the peculiar circumstances of the case where part of the goods were not available upon subsequent examination, leading to inconvenience for the appellant.

3. The Tribunal held that the time-bar prescribed under Section 27 of the Customs Act could not be applied in the present case. It was emphasized that the amount deposited by the appellant was not attributable to any imported goods due to the small quantity found in the consignment, which was cleared under an advance license without duty payment. The Tribunal also referenced a decision of the Hon'ble Delhi High Court to support this view.

4. The Tribunal discussed the second appraisement system, noting that it was introduced to enable quick clearances based on the general matching of declared goods with those found on examination. However, in this case of short landing, where only a small quantity was available and cleared without duty payment, the Tribunal concluded that the time-bar for the refund claim could not be enforced. The appeal was allowed with consequential relief granted to the appellant.