2018 (7) TMI 550 - AT - Customs

Refund of excess Customs Duty paid - The primary basis of the appellants for claiming the refund is test report, which is given by M/s Mitra S. K.Pvt. Ltd., wherein they have claimed that Fe content in the impugned export of iron ore was 61.83% and as the export duty on iron ore fines having contents of 62% Fe, is leviable to export duty @ ₹ 50/- per M.T. and since they have paid export duty @ ₹ 300/- per M.T. on the subject export consignment, the additional amount of export duty is refundable to them as per the provisions of Section 27 of the Customs Act, 1962. Held that - It is a matter of record that the exporter has neither requested for drawal of samples in presence of the Customs authorities for undertaking re-test of the export consignment nor they have paid the export duty provisionally. Without suspecting the veracity of the samples, which have been put for re-test, it is inappropriate to draw the samples from the export consignments and got the same chemically tested without knowledge of the authorities for claiming the refund of the Customs duty, which have already been finally assessed and deposited by the appellants. It is also seen from the various documents submitted along with appeal that all along in all the documents, it has been declared by the appellants that Fe content in the consignment of the iron ore fines, is having Fe of 63%. Allowing a refund claim on the basis of test reports of the samples which have been drawn and put to test without any authority or justification, will lead to complete anarchy and arbitrariness - the refund claim filed by the appellants is not admissible as per the provisions of Section 27 of the Customs Act, 1962. The appellants are not entitled for refund under Section 27 of the Customs Act, 1962 - appeal dismissed - decided against appellant.

Summary

Issues:
Refund claim of excess Customs duty paid on export of iron ore fines, Rejection of refund claim by Customs authorities, Time limit for filing refund claim under Section 27 of the Customs Act, 1962.

Analysis:
1. Refund Claim of Excess Customs Duty Paid:
The appellant filed a refund claim of ?67,05,000 against two Shipping Bills for export of iron ore fines. They paid duty based on declared Fe content of 63%, resulting in an export duty of ?300 per MT. The appellant later claimed the Fe content was 61.83% based on a test report by a private surveyor. The Customs authorities rejected the refund claim citing lack of official samples, the appellant's own declaration, and the claim being beyond the statutory time limit.

2. Rejection of Refund Claim:
The Assistant Commissioner and the Commissioner (Appeals) rejected the refund claim. They emphasized that the appellant's self-drawn samples were improper and the Fe content was declared as 63% by the appellant based on their own test report. The claim was also considered time-barred under Section 27 of the Customs Act, 1962.

3. Time Limit for Filing Refund Claim:
The appellant argued that they filed the refund claim within the six-month period as required by law. They contended that the final test report showed a lower Fe content than initially declared. The Tribunal noted that the refund claim was indeed filed within time, on 09.11.2007, after duty payments on 03.09.2007 and 10.09.2007. The Tribunal upheld the appellant's compliance with the time limit.

4. Final Decision:
The Tribunal found that the appellant's refund claim was not admissible under Section 27 of the Customs Act, 1962. They emphasized that drawing samples without official authorization could lead to arbitrariness and upheld the rejection of the claim. The appeal was dismissed, stating that the appellant was not entitled to a refund of the excess Customs duty paid.

In conclusion, the Tribunal's decision upheld the rejection of the appellant's refund claim based on the declared Fe content during export, the improper sampling process, and the admissibility of the claim within the statutory time limit.